-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D7i0oM5MYHRUFJaDii0TkKOpiBM5CQLASWuBNT71lFzcH1AiXNXRyhTMaxi4Uiuk hHueXM8MoMKWLW7kLKytNA== 0001145443-02-000554.txt : 20021010 0001145443-02-000554.hdr.sgml : 20021010 20021010101228 ACCESSION NUMBER: 0001145443-02-000554 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20020925 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20021010 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GOAMERICA INC CENTRAL INDEX KEY: 0001101268 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 223693371 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-29359 FILM NUMBER: 02785894 BUSINESS ADDRESS: STREET 1: C/O GOAMERICA, INC. STREET 2: 433 HACKENSACK AVENUE CITY: HACKENSACK STATE: NJ ZIP: 07601 BUSINESS PHONE: 2019961717 MAIL ADDRESS: STREET 1: C/O GOAMERICA STREET 2: 401 HACKENSACK AVENUE CITY: HACKENSACK STATE: NJ ZIP: 07601 8-K 1 t11369.txt SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------------------- FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 ---------------------------------- Date of report (Date of earliest event reported): September 25, 2002 GOAMERICA, INC. --------------- (Exact Name of Registrant as Specified in Charter) Delaware 0-23959 22-3693371 - -------------------------------------------------------------------------------- (State or Other Jurisdiction (Commission File Number) (IRS Employer of Incorporation) Identification No.) 433 Hackensack Avenue, Hackensack NJ 07601 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (201) 996-1717 ------------------------------------------------------------------ This Current Report on Form 8-K contains statements about expected future events and financial results that are forward-looking and subject to risks and uncertainties. These statements are intended to be protected by the "safe harbor" provisions of the Private Securities Litigation Reform Act of 1995 as they are based on management's current expectations and are naturally subject to uncertainty and changes in circumstances. Actual results may vary materially from the expectations contained herein. GoAmerica is not under any obligation to update or alter its forward-looking statements, whether as a result of new information, future events, or otherwise. ITEM 5. Other Events On September 25, 2002, GoAmerica, Inc., a Delaware corporation (together with its wholly owned subsidiary, GoAmerica Communications Corp., the "Company"), formed a comprehensive strategic alliance with Earthlink, Inc., a Delaware corporation ("Earthlink"), by entering into a series of agreements (filed herewith as Exhibits 10.1 through 10.4, the "Agreements") pursuant to which, among other things: o Earthlink will purchase all of the Company's Cellular Digit Packet Data (CDPD) subscribers as well as certain of the Company's Cingular and Motient network subscribers (collectively, the "transferred subscribers"); o Earthlink will purchase the Company's rights under a credit for $1.4 million of inventory from a hardware manufacturer, receiving the Company's equipment pricing at a discount; o The Company and Earthlink will market each other's wireless services in exchange for commissions and/or recurring revenue shares; o Earthlink will provide billing, customer support and network services to most subscribers of the Company's technology; and o The Company and Earthlink will collaborate on developing new applications and extensions of existing technology, including Earthlink-branded wireless data services, as well as new technologies. As a result of the Agreements, the Company expects to receive between $3.2 million and $4.3 million in cash between the fourth quarter of 2002 and the first quarter of 2003, subject to adjustment based upon the number of former GoAmerica subscribers that remain Earthlink subscribers through a certain transition period. Subscriber revenue associated with the transferred subscribers was $9.6 million and $17.4 million with the related costs of subscriber airtime of $8.9 million and $18.6 million for the six months ended June 30, 2002 and for the year ended December 31, 2001, respectively. The Company expects to recognize an accounting charge during the third quarter of 2002 relating to headcount reductions, inventory valuation and other items stemming from this transaction, as well as other cost reduction initiatives. Additionally, the Company is no longer pursuing its previously announced intention to raise $10 million to $15 million in new financing. The Agreements also provide for certain competitive restrictions on each of Earthlink and the Company and provides Earthlink with a right of refusal with respect to the sale of the Company or of certain significant assets of the Company. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (c) Exhibits The following Exhibits are filed as part of this report on Form 8-K: 10.1++ Acquisition Agreement, dated as of September 25, 2002, between Earthlink, Inc., GoAmerica, Inc. and GoAmerica Communications Corp. 10.2++ Sales Agent Agreement, dated as of September 25, 2002, between Earthlink, Inc., GoAmerica, Inc. and GoAmerica Communications Corp. 10.3++ Technology Development Agreement, dated as of September 25, 2002, between Earthlink, Inc., GoAmerica, Inc. and GoAmerica Communications Corp. 10.4++ License Agreement, dated as of September 25, 2002, between Earthlink, Inc., GoAmerica, Inc. and GoAmerica Communications Corp. ++ Confidential treatment has been requested for a portion of this Exhibit and the Company is awaiting a final determination. Confidential materials have been omitted and filed separately with the Securities and Exchange Commission. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. GOAMERICA, INC. By: /s/ Aaron Dobrinsky ----------------------------- Name: Aaron Dobrinsky Title: Chairman and Chief Executive Officer Date: October 9, 2002 EXHIBIT INDEX Exhibit No. Description 10.1++ Acquisition Agreement, dated as of September 25, 2002, between Earthlink, Inc., GoAmerica, Inc. and GoAmerica Communications Corp. 10.2++ Sales Agent Agreement, dated as of September 25, 2002, between Earthlink, Inc., GoAmerica, Inc. and GoAmerica Communications Corp. 10.3++ Technology Development Agreement, dated as of September 25, 2002, between Earthlink, Inc., GoAmerica, Inc. and GoAmerica Communications Corp. 10.4++ License Agreement, dated as of September 25, 2002, between Earthlink, Inc., GoAmerica, Inc. and GoAmerica Communications Corp. ++ Confidential treatment has been requested for a portion of this Exhibit and the Company is awaiting a final determination. Confidential materials have been omitted and filed separately with the Securities and Exchange Commission. EX-10 3 ex10-1.txt Exhibit 10.1 Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. EXECUTION COPY ACQUISITION AGREEMENT THIS ACQUISITION AGREEMENT (this "Agreement") is effective as of September 25, 2002 (the "Effective Date") between EarthLink, Inc., a Delaware corporation ("EarthLink"), GoAmerica, Inc., a Delaware corporation ("Parent"), and GoAmerica Communications Corporation, a Delaware corporation and wholly-owned subsidiary of Parent ("Sub", and together with Parent, "GoAmerica"). RECITALS Parent and Sub are the owners of all right, title and interest in and to the assets described in Exhibit A hereto, which include GoAmerica's subscriber base, among other assets (the "Transferred Assets"), which are used in or related to GoAmerica's wireless data service provider business (the "Business"). GoAmerica desires to sell and assign the Transferred Assets to EarthLink and EarthLink desires to purchase from GoAmerica the Transferred Assets, all on the terms and subject to the conditions set forth in this Agreement. In connection with this Agreement and as elements of an overall strategic relationship, the parties will simultaneously enter into (i) a bilateral Sales Agent Agreement, pursuant to which each party will serve as a sales agent for certain of the products and services of the other party, (ii) a Technology Development Agreement, pursuant to which the parties will develop certain technologies for use in the wireless data services business, (iii) a License Agreement, pursuant to which the GoAmerica will license to EarthLink certain software and other technologies required by EarthLink to service the Transferred Assets, and (iv) an Escrow Agreement, which defines EarthLink's rights to access the source code for certain of the licensed software. This Agreement, together with the Sales Agent Agreement, the Technology Development Agreement, the License Agreement and the Escrow Agreement are referred to collectively as the "Related Agreements." The Parties agree that the Related Agreements collectively represent an integrated transaction and that none of the Related Agreements would have been executed but for the execution of the others. Thus, the Parties agree that the consideration provided for each of the Related Agreements is consideration provided in exchange for the Parties' duties and obligations under all of the Related Agreements and that such consideration is full and fair consideration for each of the Parties' duties and obligations under all of the Related Agreements. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and in the Related Agreements and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AGREEMENT 1. DEFINITIONS. The following terms shall have the following meanings in this Agreement. "Bounty" means the amount that EarthLink will pay GoAmerica for each Qualified Subscriber provided by GoAmerica, which is described as the Applicable Bounty per Qualified Subscriber on Exhibit A. "CDPD Subscriber Transition End Date" means the date on which the transfer of CDPD platform-based Subscribers from GoAmerica's systems onto EarthLink's systems is completed and EarthLink begins to provide wireless services to such Subscribers. "EarthLink Service" means EarthLink's mobile wireless service, regardless of technology. "Final Subscriber Transition End Date" means the date on which the final transfer of CDPD platform-based Subscribers and Non-CDPD platform-based Subscribers from GoAmerica's systems onto EarthLink's systems is completed and EarthLink begins to provide wireless services to such Subscribers. "Non-CDPD Subscriber Transition End Date" means the date on which the transfer of Non-CDPD platform-based Subscribers from GoAmerica's systems onto EarthLink's systems is completed and EarthLink begins to provide wireless services to such Subscribers. "Opt-out Date" means the date between the Effective Date and the Subscriber Transition Commencement Date specified in GoAmerica's notice to Subscribers as described in Section 2.1.2 of this Agreement, which date shall be October 5, 2002 or such other date as the parties may agree in writing. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization or any governmental body. "Qualified Subscriber" means a Subscriber whose account is transferred to EarthLink pursuant to this Agreement or who, within the first six (6) months following the Effective Date, becomes an EarthLink Service customer, and in each case pays EarthLink for two (2) consecutive months of EarthLink Service. "Subscriber" means any Person billed by GoAmerica that gains access to any Internet-related services through the cellular or similar protocols. "Subscriber Transition Commencement Date" means the date on which the transfer of Subscribers from GoAmerica's system onto EarthLink's system begins, which date shall be October 8, 2002 or such other date as the parties may agree in writing. CONFIDENTIAL 2 ACQUISITION AGREEMENT "Subject Transaction" means a transaction or a series of related transactions with a third party undertaken in any form whatsoever, which if consummated, would result in any of the following: (a) the shareholders of either Parent or Sub would not own (immediately following the consummation of such transaction or series of related transactions) at least [**]% of the total voting power represented by the outstanding voting equity securities of Parent or Sub respectively, or (b) the sale of any asset, including without limitation, the Licensed Software and Server Software as defined in the License Agreement, whether alone or in combination with any other assets, that is significant to GoAmerica's business or would be, if the asset were owned by EarthLink, significant to EarthLink's business. "Transferred Assets" means the assets set forth in Exhibit A. "Transition Period" means the period between the Effective Date and the Final Subscriber Transition End Date. 2. DUTIES AND OBLIGATIONS OF THE PARTIES. 2.1 Duties and Obligations of GoAmerica. In connection with this Agreement, GoAmerica shall have the following duties and obligations: 2.1.1 Notification Email and Opt-out Provision. On September 28, 2002, GoAmerica will send an e-mail to all Subscribers notifying all Subscribers that (a) GoAmerica is in the process of selling its accounts to EarthLink, (b) GoAmerica will terminate service to all Subscribers as of the applicable transfer date described below in Section 2.1.3, (c) each Subscriber will have the opportunity to opt out of the transfer of the Subscriber's account to EarthLink by notifying GoAmerica by means of a specified procedure on or before the Opt-out Date, (d) each Subscriber who opts out on or before the transfer will need to find a wireless service provider other than GoAmerica, (e) the accounts of all Subscribers who do not opt out on or before the Opt-out Date will be transferred to EarthLink, (f) each Subscriber will be given an opportunity to review EarthLink's Internet Service Agreement by means of a hyperlink to such agreement prominently displayed in the e-mail, (g) unless a Subscriber opts out of the transfer, each Subscriber shall be deemed to be bound by the terms and conditions of the EarthLink Internet Services Agreement. GoAmerica shall submit this email to EarthLink for its prior approval and comment prior to transmitting it to the Subscribers. 2.1.2 Opt-out Follow Up. Two (2) days before the Opt-out Date, GoAmerica shall send a follow-up e-mail to all Subscribers with substantially the same content as the e-mail referred to in Section 2.1.1 above. GoAmerica shall submit this email to EarthLink for its prior approval and comment prior to transmitting it to the Subscribers. 2.1.3 Transfer of Transferred Assets. (a) CDPD Platform-based Subscribers. On September 27, 2002, GoAmerica shall deliver to EarthLink a database, in a form and containing data in the form attached as Exhibit B, an electronic database of customer information related to GoAmerica's CDPD platform-based Subscribers. EarthLink shall have two (2) business days to verify the CONFIDENTIAL 3 ACQUISITION AGREEMENT contents and form of the database and accept or reject the database. If after such review, EarthLink notifies GoAmerica that EarthLink has accepted the database, then the CDPD platform-based Subscribers shall be transferred to EarthLink, free and clear of any third party claim, interest or encumbrance, as of October 8, 2002 (subject to Section 2.1.13 with respect to the [**] CDPD Subscribers). If EarthLink promptly notifies GoAmerica of all specific deficiencies in the database that causes EarthLink to reasonably reject the database, then GoAmerica shall have two (2) business days to correct such deficiency or deficiencies and resubmit the database to EarthLink for another two (2) business day verification process. This process shall be repeated, and the date on which the Subscribers are transferred appropriately delayed, until EarthLink accepts the database; however, if EarthLink rejects the database two (2) or more times, EarthLink may unilaterally terminate this Agreement and all other Related Agreements without any liability whatsoever. (b) Non-CDPD Platform-based Subscribers. On or before October 26, 2002, GoAmerica shall deliver to EarthLink a database, in a form and containing data in the form attached as Exhibit B, an electronic database of customer information related to GoAmerica's non-CDPD platform-based Subscribers. EarthLink shall have two (2) business days to verify the contents and form of the database and accept or reject the database. If after such review, EarthLink notifies GoAmerica that EarthLink has accepted the database, then the non-CDPD platform-based Subscribers shall be transferred to EarthLink, free and clear of any third party claim, interest or encumbrance, as of November 1, 2002. If EarthLink promptly notifies GoAmerica of all specific deficiencies in the database that causes EarthLink to reasonably reject the database, then GoAmerica shall have two (2) business days to correct such deficiencies and resubmit the database to EarthLink for another two (2) business day verification process. This process shall be repeated, and, if necessary, the date on which the Subscribers are transferred appropriately delayed, until EarthLink accepts the database; however, if EarthLink rejects the database 2 or more times, EarthLink may unilaterally terminate this Agreement and all other Related Agreements without any liability whatsoever. In such event EarthLink and GoAmerica shall work together diligently and in good faith to unwind any Subscriber transfers and other asset transfers that may have previously occurred, and each party shall promptly reimburse to the other party any and all amounts paid by the other party in connection with this Agreement and any of the other Related Agreements. (c) [**] Credit. Immediately following the Effective Date, GoAmerica shall exert best efforts to cause its [**] Dollars ($[**]) credit with [**] (the "[**] Credit") to be transferred in full to EarthLink for EarthLink's benefit. 2.1.4 Forward Subscribers Email. GoAmerica will forward each Subscriber's e-mail for a period of ninety (90) days after the CDPD Subscriber Transition End Date or Non-CDPD Subscriber Transition End Date, respectively, to such Subscriber's new EarthLink e-mail address. GoAmerica will also include in such e-mail other text requested by EarthLink that is mutually agreed-upon by the parties. 2.1.5 Operation of the Business During the Transition Period. Except as expressly permitted or required hereby, at all times during the Transition Period, GoAmerica will continue to operate the Business in the ordinary course consistent with past practice (including, CONFIDENTIAL 4 ACQUISITION AGREEMENT without limitation, with regard to billing and collection practices and efforts to retain existing Subscribers, but not necessarily to obtain new Subscribers) and will not engage in any practice, take any action, embark on any course of action or enter into any transaction that would have an adverse effect on the Transferred Assets or GoAmerica's ability to perform its obligations under this Agreement or any of the other Related Agreements. During the Transition Period GoAmerica will take all actions necessary to effectuate a transfer of the Transferred Assets and will not: (a) sell, lease, license or otherwise dispose of any of the Transferred Assets; (b) suffer or permit any encumbrance to arise or be granted or created against or upon any of the Transferred Assets; (c) sell, assign, pledge, mortgage or otherwise transfer, or suffer any damage, destruction or loss (whether or not covered by insurance) to, any of the Transferred Assets; (d) amend, terminate or fail to renew any contract (including, without limitation, any Subscriber contracts), agreement, lease, franchise, license or other agreement directly relating to the Transferred Assets without first obtaining the prior written consent of EarthLink; (e) waive any accounts receivable or outstanding bills, discount future bills or provide any services without payment relating to the Transferred Assets; (f) enter into any credit arrangement or assume any debt obligation directly relating to the Transferred Assets; (g) enter into any transaction or agreement relating to the Business that could reasonably be expected to have a material adverse effect on the Transferred Assets; or (h) agree or commit to do any of the foregoing. Until the Final Subscriber Transition End Date, GoAmerica will continue to provide support services to all Subscribers consistent with its existing services, including handling inquiries about the transition. 2.1.6 Performance of Certain Obligations. (a) During the period prior to and for six (6) months after the Final Subscriber Transition End Date, GoAmerica shall perform in full all obligations and agreements existing between GoAmerica and any third party that are not assumed by EarthLink in writing and which relate to the Transferred Assets. (b) GoAmerica shall fully extinguish any indebtedness owing by GoAmerica to any third party that is not assumed by EarthLink in writing and which any way is related to the Transferred Assets (c) Prior to and during the six (6) months following the Final Subscriber Transition End Date, GoAmerica shall not commence any voluntary bankruptcy proceeding and shall oppose any involuntary bankruptcy proceeding commenced against it. 2.1.7 Notice of Developments. During the Transition Period, GoAmerica will give prompt written notice to EarthLink of any material development affecting the Business and/or the Transferred Assets (including, without limitation, the Subscriber accounts). 2.1.8 Access. At all times during the Transition Period, GoAmerica will provide representatives of EarthLink with reasonable access to the personnel, officers, agents, employees, assets (including, without limitation, the Transferred Assets and any other assets used in the operation of the Business relating to the Transferred Assets), properties, titles, contracts (including, without limitation, Subscriber contracts), books, records (including, without limitation, tax records), files and documents (including, without limitation, financial, tax basis, CONFIDENTIAL 5 ACQUISITION AGREEMENT budget projections, auditors' work papers and such other information as EarthLink may reasonably request), customers, suppliers, legal counsel, independent auditors and other representatives. 2.1.9 Taxes. GoAmerica shall be responsible for and shall pay when due and discharge all taxes associated with its sale of the Transferred Assets and all amounts that EarthLink pays to GoAmerica pursuant to any of the Related Agreements Assets (including, without limitation, transfer taxes, bulk sales taxes, taxes on GoAmerica's income and other similar taxes). 2.1.10 Expenses. GoAmerica shall promptly discharge all liabilities incurred by GoAmerica relating to the Transferred Assets. 2.1.11 Further Assurances. GoAmerica shall execute and deliver such documents necessary to convey, grant, assign, transfer and deliver to EarthLink and its successors and assigns, free and clear of any and all liens, claims, charges and encumbrances, all of GoAmerica's right, title and interest in and to the Transferred Assets. 2.1.12 Consents. GoAmerica shall obtain all consents necessary for the execution, delivery and performance of this Agreement unless waived by EarthLink in writing. 2.1.13 [**] Subscribers. GoAmerica and EarthLink shall each use commercially reasonable efforts to develop a Subscriber transition plan with [**]for the timely, efficient transfer of the [**] CDPD Subscriber base (as set forth on Exhibit A), on or before November 1, 2002, for which [**] is a reseller for GoAmerica. The Parties agree that [**] refusal or failure to agree to a transition plan shall not be deemed a breach of this Agreement by GoAmerica. 2.1.14 CDPD Agreements. GoAmerica shall be responsible for all liabilities associated with all CDPD cellular provider agreements that EarthLink elects to discontinue by giving GoAmerica written notice no later than October 1, 2002. 2.1.15 Non-CDPD Agreements. GoAmerica shall be responsible for all liabilities associated with all Non-CDPD cellular provider agreements that EarthLink elects to discontinue by giving GoAmerica written notice no later than October 30, 2002. 2.1.16 Assistance. (a) Subscriber Transfers. GoAmerica shall exert reasonable best efforts to ensure the successful transfer of Subscribers to EarthLink. GoAmerica understands that EarthLink will treat each sub-category of Subscribers (as described in Exhibit A) independently and will use differing methods to attempt to convert the Subscribers to EarthLink's service, and further understands that EarthLink's methods (including usage plans and related pricing) may discourage certain Subscribers from becoming Qualified Subscribers. GoAmerica understands that the conversion of the Subscribers from GoAmerica's service to EarthLink's service may include a reasonable hardware cost for the Subscribers, which cost shall been borne by either or both of the Subscriber and EarthLink; however, EarthLink shall offer the hardware to the Subscribers at or less than the prevailing retail price. CONFIDENTIAL 6 ACQUISITION AGREEMENT (b) Agreements. GoAmerica shall exert best efforts to cause the assignment to EarthLink of third-party agreements related to the Transferred Assets for which EarthLink requests assignment. 2.1.17 Reimbursement. GoAmerica shall reimburse EarthLink the respective Applicable Bounty per Qualified Subscriber (as described in Exhibit A) for any Qualified Subscriber who terminates the EarthLink Service within the first three months of becoming a Qualified Subscriber and who within six (6) months of such termination becomes a customer of any of GoAmerica's services that are substantially similar to the EarthLink service(s) for which such Subscriber was a Qualified Subscriber. GoAmerica also agrees to credit fees for any Subscribers that (a) chargeback or receive credit for service within the first three months after they have become Qualified Subscribers and (b) have zero usage on such account during the aforementioned period. GoAmerica understands that EarthLink will use commercially reasonable efforts to find price points for the Subscribers that match the GoAmerica service offerings for which the Subscribers were customers; however, EarthLink reserves the right to increase, or lower, the monthly service price. Notwithstanding the foregoing, EarthLink will not increase the monthly service price for the Subscriber during the first two (2) pay periods during which a Subscriber becomes an EarthLink subscriber. 2.2 Duties and Obligations of EarthLink. In connection with this Agreement, EarthLink shall have the following duties and obligations: 2.2.1 Payment. EarthLink shall pay GoAmerica the Applicable Bounty per Qualified Subscriber (described in Exhibit A) for each of GoAmerica's Subscribers that becomes a Qualified Subscriber. The total Bounty shall be paid as follows: (a) First Payment. Upon EarthLink's acceptance of the CDPD platform-related database per Section 2.1.3(a) EarthLink shall pay [**] Dollars ($[**]), which represents prepaid fees of [**] Dollars ($[**]) for CDPD platform-based Subscribers and [**] Dollars ($[**]) for Non-CDPD platform-based Subscribers by wire transfer of funds to GoAmerica's account the instructions for which GoAmerica must provide to EarthLink in writing before such wire transfer hereto (the "GoAmerica Account"). (b) Second and Third Payments. EarthLink shall determine the number of actual Qualified Subscribers after two monthly billing cycles following each of the transfers of the (i) CDPD platform-based Subscribers (except for the [**] CDPD Subscribers) per Section 2.1.3(a) (the "CDPD Determination") and (ii) non-CDPD platform-based Subscribers (including any [**] CDPD Subscribers per Section 2.1.13) per Section 2.1.3(b) (the "Non-CDPD Determination"). Promptly after the CDPD Determination, EarthLink shall pay the total net amount of Bounties due for the CDPD platform-based Subscribers less [**] Dollars ($[**]by wire transfer to the GoAmerica Account. Promptly after the Non-CDPD Determination, EarthLink shall pay the total net amount of Bounties due for the Non-CDPD platform-based Subscribers and any [**] CDPD Subscribers less [**] Dollars ($[**]) by wire transfer to the GoAmerica Account. (c) [**] Credit Payment. Upon receipt by EarthLink of written confirmation from [**]of the transfer of the full [**] Credit in accordance with Section 2.1.3(c), CONFIDENTIAL 7 ACQUISITION AGREEMENT EarthLink shall pay GoAmerica [**] Dollars ($[**]) by wire transfer to the GoAmerica Account. However, if [**] does not transfer the [**] Credit to EarthLink within [**] days after the Effective Date, GoAmerica agrees to procure for EarthLink [**] 1xRTT cards, at GoAmerica's expense except for shipping costs, with a value of $[**] per 1xRTT card. (d) Right to Setoff. Either party (the "Offsetting Party") shall have the right to set off against payment due to the other party hereunder any amounts that the other party then owes to the Offsetting Party, including, without limitation, any amounts subject to an indemnifiable claim, whether arising out of this Agreement or any of the Related Agreements. Prior to exercising this right, the Offsetting Party, through a vice president or higher officer, shall first attempt, in good faith, to resolve the matter giving rise to setoff to the satisfaction of both parties with a vice president or higher officer of the other party, but is not obligated to do so for more than [**] business days after the Offsetting Party notifies the other party of its offset right. (e) Maintenance of Records; Audit. EarthLink will maintain proper books and records so as to allow for the verification of amounts paid or owed to GoAmerica. During the one hundred twenty (120) day period following the Final Subscriber Transition End Date, GoAmerica will have a one time right to audit and analyze the EarthLink's records solely as they relate to payments due GoAmerica hereunder and to ensure compliance with all payment terms of this Agreement. Unless agreed to otherwise in writing by the Parties, such audit will be conducted during the usual business hours and at EarthLink's place of business. The audited books and records as well as the results of any such audit will be considered Confidential Information as set forth in this Agreement. GoAmerica will bear the costs and expenses of the audit. In the event such an examination discloses that EarthLink owes GoAmerica an amount that is five percent (5%) or more than the fees actually paid, in addition to paying any additional amount which such audit may show is owed, EarthLink shall pay all costs reasonably incurred by GoAmerica in connection with the audit. 2.2.2 Notification Email Support. EarthLink shall cooperate in the preparation of the e-mail notices contemplated in Sections 2.1.1 and 2.1.2 above, including, without limitation, providing GoAmerica with any requested text, providing GoAmerica with relevant information requested by GoAmerica and answering any questions of GoAmerica with respect to such notices. 2.2.3 Additional Duties and Obligations of EarthLink. EarthLink shall provide all wireless access, billing, customer support, and technical support to the transferred Subscribers including without limitation, the Browser Only Subscribers (as defined in the Sales Agent Agreement), as of the first date that EarthLink begins billing such Subscribers. EarthLink shall remit to GoAmerica on a monthly basis any Subscriber fees owed to GoAmerica received by EarthLink that relate to any period prior to the date EarthLink begins to bill the Subscribers for EarthLink's account. GoAmerica shall remit to EarthLink on a monthly basis any fees owed to EarthLink received by GoAmerica that relate to any period after the date EarthLink begins to bill the Subscribers for EarthLink's account. From and after the Effective Date, EarthLink shall use its regular business practices in collecting any amounts from any Qualified Subscriber that are due GoAmerica. CONFIDENTIAL 8 ACQUISITION AGREEMENT 2.3 Press Release. Neither party shall issue a press release or similar public announcement of any kind regarding this Agreement without the prior written approval of the other party except as required by securities law. 3. REPRESENTATIONS AND WARRANTIES. 3.1 Representations and Warranties of GoAmerica. Parent and Sub, jointly and severally, represent and warrant to EarthLink as follows: 3.1.1 Due Organization. Each of Parent and Sub is a corporation duly organized, validly existing, and in good standing under the laws of the state of incorporation, and has full corporate power and authority to own and lease its properties and assets and to carry on its business as now conducted. Each of Parent and Sub is qualified to do business in all other jurisdictions where such qualification would be required as a result of Parent's and/or Sub's ownership and operation of the Business and the Transferred Assets, except where the failure to be so qualified does not and could not reasonably be expected to have a material adverse effect on the Business or the Transferred Assets. 3.1.2 Due Authorization. Each of Parent and Sub has full power and authority to execute, deliver and perform this Agreement and to carry out the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the Board of Directors of GoAmerica and no other corporate proceedings on the part of GoAmerica are necessary to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Parent and Sub and constitutes the valid and binding obligation of them, enforceable in accordance with its terms, except to the extent that enforceability may be limited by laws affecting creditors' rights and debtors' obligations generally, and legal limitations relating to remedies of specific performance and injunctive and other forms of equitable relief (the "Equitable Exceptions"). The execution, delivery, and performance of this Agreement (as well as any other instruments, agreements, certificates, or other documents contemplated hereby) by Parent and Sub, do not (i) violate any statues, laws, rules, ordinances or any court order of governmental body requirement applicable to Parent or Sub, or the property of Parent or Sub, (ii) violate or conflict with, or permit the cancellation of, or constitute a default under, any material agreement to which Parent or Sub is a party, or by which Parent or Sub or any of their property is bound, (iii) permit the acceleration of the maturity of any material indebtedness of, or indebtedness secured by the property of Parent or Sub which will not be paid in full as of the date of this Agreement, (iv) violate or conflict with any provision of the charter or bylaws of Parent or Sub or (v) require any consent, approval or authorization of, or notice to, or declaration, filing or registration with, any governmental body or other third party. 3.1.3 Transferred Assets. Parent and Sub have full and unrestricted legal title to the Transferred Assets and all revenue generated by the Transferred Assets, in each case free and clear of any and all liens, claims, revenue sharing or referral fees, charges, encumbrances or restrictions of any kind, and upon EarthLink's receipt of the Transferred Assets, EarthLink shall own the Transferred Assets, free and clear of any liens, claims, charges, encumbrances or CONFIDENTIAL 9 ACQUISITION AGREEMENT restrictions of any kind. All the information relating to the Transferred Assets set forth on Exhibit A is true and accurate in all material respects. 3.1.4 Claims. There are no claims, actions, suits, proceedings, or investigations pending or, to the best knowledge and belief of Parent and Sub, threatened against or affecting Parent or Sub and relating to the Business or any of the Transferred Assets, at law or in equity, before or by any court, municipality or other governmental body which, if adversely determined, could individually or in the aggregate have a material adverse effect on the Transferred Assets or the Business. Neither Parent nor Sub has been and neither is now, subject to any court order, stipulation, or consent of or with any court or governmental body related to the Transferred Assets. No inquiry, action or proceeding has been instituted or, to the best knowledge of Parent and Sub, threatened or asserted against Parent or Sub to restrain or prohibit the carrying out of the transactions contemplated by this Agreement or to challenge the validity of such transactions or any part thereof or seeking damages on account thereof. To the best knowledge of Parent and Sub, there is no basis for any such valid claim or action. 3.2 Representations and Warranties of EarthLink. EarthLink represents and warrants to GoAmerica as follows: 3.2.1 Due Organization. EarthLink is a corporation duly organized, validly existing, and in good standing under the laws of the state of Delaware and has full corporate power and authority to carry on its business as now conducted. 3.2.2 Due Authorization. EarthLink has full power and authority to execute, deliver and perform this Agreement and to carry out the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by EarthLink and constitutes the valid and binding obligations of EarthLink, enforceable in accordance with its terms, except to the extent that enforceability may be limited by the Equitable Exceptions. 3.2.3 Claims. There are no claims, actions suits, proceedings, or investigations pending or, to the best knowledge and belief of EarthLink, threatened against or affecting EarthLink and relating to any EarthLink Service, at law or in equity, before or by any court, municipality or other governmental body which, if adversely determined, could individually or in the aggregate have a material adverse effect on the Transferred Assets. No inquiry, action or proceeding has been instituted or, to the best knowledge, threatened or asserted against EarthLink to restrain or prohibit the carrying out of the transactions contemplated by this Agreement or to challenge the validity of such transactions or any part thereof or seeking damages on account thereof. To the best knowledge of EarthLink, there is no basis for any such valid claim or action. 4. RESTRICTIVE COVENANTS. 4.1 GoAmerica. Except in the event of termination of this Agreement due to an uncured material breach by EarthLink, for a period of [**] years after the Final Subscriber Transition End Date, GoAmerica shall not, either individually, or in partnership or jointly or in conjunction with any Person as principal, agent, employee or shareholder or in any other manner whatsoever: CONFIDENTIAL 10 ACQUISITION AGREEMENT 4.1.1 knowingly contact or solicit any Qualified Subscribers or other customers of EarthLink (directly or indirectly) for the purpose of diverting any existing or future business of such Qualified Subscribers to a competing service offered by GoAmerica, [**] or any of their affiliates or subsidiaries, provided however, (i) [**] divisions, which are not in substantially the same business as [**], shall not be considered affiliates or subsidiaries of [**] for purposes of this Section 4.1.1 and (ii) GoAmerica shall not be restricted from contacting or soliciting any Browser Only Subscribers (as defined in Sales Agent Agreement) that are transferred back to GoAmerica under Section 9.3 of the Sales Agent Agreement; or 4.1.2 contact or solicit any employees or direct or indirect distribution channels, strategic alliances or technical joint venturers or similar business associates of, or vendors to, EarthLink (directly or indirectly) for the purpose of causing, inviting or encouraging any such employee or third party to alter or terminate his, her or its employment or business relationship with EarthLink; or 4.1.3 willfully make any public statement or perform or do any other act prejudicial or injurious to the reputation or goodwill of EarthLink or otherwise interfere with the business of EarthLink or any of its affiliates; or 4.1.4 take any action that is primarily designed or intended to have the effect of discouraging any Subscriber, lessor, licensor, customer, supplier, or other business associate of GoAmerica from maintaining the same business relations with EarthLink (or to another Person at the direction of EarthLink) after the date hereof as it maintained with GoAmerica prior to the date hereof with respect to the Transferred Assets; or 4.1.5 offer or solicit business relating to the Transferred Assets. 4.2 EarthLink. Except in the event (i) of any termination of this Agreement by EarthLink (provided such termination may not be caused by the termination of any of the Related Agreements by EarthLink for convenience), (ii) termination of any of the Related Agreements by EarthLink due to an uncured material breach of GoAmerica, or (iii) in the event GoAmerica terminates the Sales Agent Agreement for convenience, for a period of [**] years after the Final Subscriber Transition End Date, EarthLink shall not: 4.2.1 without GoAmerica's prior written consent, contact or solicit any employees or direct or indirect distribution channels, strategic alliances or technical joint venturers or similar business associates of, or vendors to, GoAmerica (directly or indirectly) for the purpose of causing, inviting or encouraging any such employee or third party to alter or terminate his, her or its employment or business relationship with GoAmerica; 4.2.2 make any public statement or perform or do any other act prejudicial or injurious to the reputation or goodwill of GoAmerica or otherwise interfere with the business of GoAmerica or any of its affiliates; or 4.2.3 license or create alone or with [**], a browser substantially the same as the Go.Web browser, provided however, this Section 4.2.3 will not restrict EarthLink (i) from CONFIDENTIAL 11 ACQUISITION AGREEMENT including third party browsers in EarthLink's product offerings (e.g., the [**] wireless platform product includes a third party browser) or (ii) in the event GoAmerica does not support a platform or network. 5. CONFIDENTIALITY. Except as otherwise provided in this Agreement, GoAmerica and EarthLink each agree that all information communicated to one by the other or the other's affiliates, whether before or after the Effective Date, will be received in strict confidence, will be used only for purposes of this Agreement and will not be disclosed by the recipient party, its agents, subcontractors or employees without the prior written consent of the other party. Each party agrees to take all reasonable precautions to prevent the disclosure to outside parties of such information, including, without limitation, the terms of this Agreement, except as required by legal, accounting or regulatory requirements. The provisions of this Section shall survive the expiration or termination of this Agreement for any reason. 6. LIABILITY AND INDEMNIFICATION. 6.1 No Assumption of Liabilities. Except as expressly provided for in this Agreement, EarthLink shall not be deemed to have assumed and shall not be liable for, and GoAmerica shall retain and remain responsible for, all of GoAmerica's and the Business's debts, liabilities and obligations of any nature whatsoever including, without limitation, all prepaid accounts, all contracts, capital leases, operating leases and Subscriber credits and/or refunds, whether accrued, absolute or contingent, whether known or unknown, whether due or to become due and whether related to the Transferred Assets or otherwise, and regardless of when asserted. 6.2 Indemnification. 6.2.1 GoAmerica. GoAmerica agrees to indemnify and hold harmless EarthLink, and each officer, director, and affiliate of EarthLink, including without limitation any successor of EarthLink (collectively, the "EarthLink Indemnified Parties") from and against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs and expenses (including court costs and reasonable attorneys' fees and expenses incurred in connection with any litigation or proceeding) (collectively, the "EarthLink Indemnifiable Costs"), which any of the EarthLink Indemnified Parties may sustain, or to which any of the EarthLink Indemnified Parties may be subjected, arising out of (a) any material misrepresentation, breach or default by GoAmerica of or under any of the representations, covenants, agreements or other provisions of this Agreement or any of the Related Agreements or document executed in connection herewith; (b) any noncompliance with the provisions of any applicable bulk sales law or regulation; or (c) GoAmerica's conduct of its business and/or the actions and/or inactions of GoAmerica or its affiliates. Notwithstanding the foregoing, EarthLink shall not seek indemnification from GoAmerica until and unless the total of all EarthLink Indemnifiable Costs equal or exceeds $5,000 in the aggregate, after which time GoAmerica shall be liable for all EarthLink Indemnifiable Costs including the first $5,000 thereof. 6.2.2 EarthLink. EarthLink agrees to indemnify and hold harmless GoAmerica, and each officer, director, and affiliate of GoAmerica, including without limitation or any successor of GoAmerica (collectively, the "GoAmerica Indemnified Parties") from and against CONFIDENTIAL 12 ACQUISITION AGREEMENT any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs and expenses (including court costs and reasonable attorneys' fees and expenses incurred in connection with any litigation or proceeding) (collectively, the "GoAmerica Indemnifiable Costs"), which any of the GoAmerica Indemnified Parties may sustain, or to which any of the GoAmerica Indemnified Parties may be subjected, arising out of (a) any material misrepresentation, breach or default by EarthLink of or under any of the representations, covenants, agreements or other provisions of this Agreement or any of the Related Agreements or document executed in connection herewith; or (b) the conduct of EarthLink's business as it directly relates to the transferred Subscribers. Notwithstanding the foregoing, GoAmerica shall not seek indemnification from EarthLink until and unless the total of all GoAmerica Indemnifiable Costs equal or exceeds $5,000 in the aggregate, after which time EarthLink shall be liable for all GoAmerica Indemnifiable Costs including the first $5,000 thereof. 7. RIGHT OF FIRST REFUSAL. 7.1 At such time as GoAmerica commences bona fide discussions with another entity, or group of related entities, to effect a Subject Transaction, GoAmerica shall promptly notify EarthLink and shall continue to keep EarthLink reasonably informed on a regular basis of the substance of the discussions, the progress being made with respect to the transaction that is the subject of the discussions, the material commercial terms of the subject transaction and other such information reasonably related to the discussions (an "Offer Notice"). 7.2 If GoAmerica receives an offer from a third party, whether that offer was solicited by GoAmerica or not, and whether or not GoAmerica has provided a notice pursuant to Section 7.1, then at such time, if any, as GoAmerica believes that the transaction subject to the offer will become subject to a definitive agreement within the next [**] ([**]) calendar days, GoAmerica shall immediately deliver to EarthLink a written notice describing the form and structure of the possible transaction and the then proposed terms and conditions (including pricing information) for such transaction (also an "Offer Notice"). 7.3 For [**] ([**]) business days following EarthLink's receipt of an Offer Notice (the "EarthLink Offer Period"), GoAmerica may not enter into a definitive agreement with respect to the Offer and must continue to provide information required to be provided pursuant to Sections 7.1 and 7.2. 7.4 If EarthLink determines to make a counter-offer to the offer described in the Offer Notice, EarthLink may do so prior to the end of the EarthLink Offer Period, by notifying GoAmerica in writing of the terms and conditions of EarthLink's counter offer (the "EarthLink Counter Offer"). GoAmerica shall cause its Board of Directors promptly to convene for the purpose of determining whether to accept or reject the EarthLink Counter Offer. If the GoAmerica Board of Directors, in good faith and after consultation with its professional financial advisors and outside legal counsel, determines that the EarthLink Counter Offer is more favorable to GoAmerica or to its shareholders from a financial perspective than the offer described in the Offer Notice, then GoAmerica will accept the EarthLink Counter Offer and affirmatively reject the third-party offer that is the subject of the Offer Notice, and shall also immediately commence the diligent negotiation and preparation of definitive documents for the CONFIDENTIAL 13 ACQUISITION AGREEMENT consummation of the EarthLink Counter Offer. If the GoAmerica Board of Directors, in good faith and after consultation with its professional financial advisors and outside legal counsel, determines that the EarthLink Counter Offer is not more favorable to GoAmerica or to its shareholders from a financial perspective than the offer described in the Offer Notice, then GoAmerica shall have no further obligation to EarthLink with respect to this Section 7. 8. TERM AND TERMINATION. 8.1 Term. This Agreement shall continue until the last date of termination or expiration of any of the other Related Agreements unless terminated in accordance with Section 8.2 herein. 8.2 Termination. This Agreement may be terminated by either Party at any time in the event of a material breach by the other Party of this Agreement that remains uncured thirty (30) days after the breaching Party's receipt of written notice of the breach. In addition, this Agreement may be immediately terminated by EarthLink for cause, upon written notice to GoAmerica, upon the termination of any of the other Related Agreements (i) by EarthLink due to an uncured material breach by GoAmerica, (ii) by EarthLink upon the occurrence of a Release Condition or (iii) by GoAmerica for convenience. 8.3 Effects of Expiration or Termination. Except as specifically provided in Section 4 herein, upon the expiration or termination of this Agreement, all rights and obligations of the parties under this Agreement shall terminate, except the rights and obligations under Sections 2.1.4, 2.1.5, 2.1.6, 2.1.8, 2.1.11, 2.1.12, 2.1.14, 2.1.15, 2.1.16, 2.1.17, 2.2.1, 2.2.3, 2.3, 4, 5, 6, 8 and 9 herein shall survive expiration or termination of the Agreement. In addition, EarthLink's rights and GoAmerica's obligations under Section 7 shall continue for a period of one (1) year following the effective date of termination, except in the event of a termination of this Agreement by GoAmerica due to an uncured material breach by EarthLink; provided however, in the event EarthLink terminates the Sales Agent Agreement for convenience Section 7 shall terminate immediately upon the effective date of termination of such Sales Agent Agreement. In addition, upon the termination of this Agreement, the Related Agreements shall automatically and immediately terminate for cause. 9 GENERAL PROVISIONS. 9.1 Entire Agreement. This Agreement, any exhibits attached hereto and each of the other Related Agreements, constitute the entire understanding and agreement with respect to the subject matter hereof and thereof, and supersede any and all prior understandings and agreements, whether oral or written, between the parties relating to the subject matter hereof and thereof, all of which are merged in this Agreement and the other Related Agreements. The Agreement shall not be revised, amended, or in any way modified except in writing executed by both parties. 9.2 Waivers. The waiver by any party of any of its rights or breaches of the other party under this Agreement in a particular instance shall not be construed as a waiver of the same or different rights or breaches in subsequent instances. All remedies, rights, undertakings and CONFIDENTIAL 14 ACQUISITION AGREEMENT obligations hereunder shall be cumulative and none shall operate as a limitation of any other remedy, right, undertaking or obligation thereof. No failure or delay by any party in exercising any right, power or privilege hereunder (and no course of dealing between or among any of the parties) shall operate as a waiver of any such right, power or privilege. 9.3 Expenses. Each of the parties shall bear all costs, charges and expenses incurred by such party in connection with this Agreement and the consummation of the transactions contemplated herein, except as expressly provided for in this Agreement. 9.4 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of GoAmerica and EarthLink and each of their respective heirs, representatives, successors, and permitted assigns, in accordance with the terms hereof. This Agreement shall not be assignable by GoAmerica without the prior written consent of EarthLink. This Agreement shall be assignable by EarthLink to any of its affiliates without the prior written consent of GoAmerica. 9.5 Governing Law. The laws of Delaware shall govern this Agreement without giving effect to applicable conflict of laws provisions. The federal and state courts located in Atlanta, Georgia alone have jurisdiction over all disputes brought by GoAmerica arising out of or related to this Agreement. GoAmerica consents to the personal jurisdiction of such courts sitting in Georgia with respect to such matters, and waives GoAmerica's rights to removal or consent to removal. The federal and state courts located in Newark, New Jersey alone have jurisdiction over all disputes brought by EarthLink arising out of or related to this Agreement. EarthLink consents to the personal jurisdiction of such courts sitting in New Jersey with respect to such matters, and waives EarthLink's rights to removal or consent to removal. In the event any litigation or other proceeding is brought by either party in connection with this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to recover from the other party all costs, reasonable attorneys' fees and other reasonable expenses incurred by such prevailing party in such litigation. 9.6 Severability of Provisions. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. 9.7 Notices. All notices or other communications hereunder shall be in writing and shall be delivered by hand, facsimile or sent, postage prepaid, by registered or certified mail or reputable overnight courier service and shall be deemed given when so delivered by hand or facsimile, or, if mailed, five days after mailing (one business day in the case of overnight courier) addressed to the intended recipient as set forth below: CONFIDENTIAL 15 ACQUISITION AGREEMENT If to GoAmerica: Aaron Dobrinsky Chairman and CEO GoAmerica, Inc. 433 Hackensack Avenue Hackensack, NJ 07601 Fax (201) 527-1772 with a copy to: GoAmerica, Inc. Attn: General Counsel 433 Hackensack Avenue Hackensack, NJ 07601 Fax (201) 527-1081 If to EarthLink: Brent Cobb Vice President EarthLink, Inc. 1375 Peachtree Street Atlanta, GA 30309 Fax (404) 892-7616 with copies to: EarthLink, Inc. 1375 Peachtree Street Atlanta, GA 30309 Attn: Legal Department Fax (404) 287-4905 and to Hunton & Williams 600 Peachtree Street, NE Bank of America Plaza, Suite 4100 Atlanta, Georgia 30309 Attn: W. Tinley Anderson, III Fax (404) 888-4190 [Signature Page Follows] CONFIDENTIAL 16 ACQUISITION AGREEMENT Each of the parties has executed this Agreement as of the Effective Date. EarthLink, Inc. By: /s/Brent Cobb ------------------------------------ Brent Cobb, Vice President GoAmerica, Inc. By:/s/Aaron Dobrinsky ------------------------------------- Name: Aaron Dobrinsky Title: CEO GoAmerica Communications Corporation By:/s/Aaron Dobrinsky ------------------------------------- Name: Aaron Dobrinsky Title: CEO [Signature Page to EarthLink-GoAmerica Acquisition Agreement] CONFIDENTIAL 17 ACQUISITION AGREEMENT Exhibit A TRANSFERRED ASSETS A. Subscribers.
- ----------------------------------------------------------------------------------------- Subscriber Category Number of Subscribers as Applicable Bounty per of the Effective Date Qualified Subscriber - ----------------------------------------------------------------------------------------- CDPD - [**] [**] $[**] - ----------------------------------------------------------------------------------------- CDPD [**] [**] $[**] ([**] Subscribers) - ----------------------------------------------------------------------------------------- [**] - Email & Go.Web [**] $[**] - ----------------------------------------------------------------------------------------- [**] - Email Only [**] $[**] - -----------------------------------------------------------------------------------------
For purposes of EarthLink's evaluation of Subscribers and the transfer of Subscribers to EarthLink's systems, EarthLink will separate the Subscribers into 6 sub-categories: 1. Roamers (roaming in the last 3 months) 2. High-usage subscribers 3. [**] laptop subscribers 4. Laptop subscribers 5. [**] subscribers 6. [**] subscribers B. [**] Credit. 18 Exhibit B FORM DATABASE
- ------------------------------------------------------------------------------------------------------------------------------ Record Types Field Required/Optional Notes ============================================================================================================================== Subscriber Records Account ID Required This should be the value of the field which identifies the subscriber record in the old billing system. This will be used for reference and investigative purposes. ---------------------------------------------------------------------------------------------------- First Name Required Subscribers first name ---------------------------------------------------------------------------------------------------- Middle Name Optional Subscribers middle name ---------------------------------------------------------------------------------------------------- Last Name Required Subscribers last name ---------------------------------------------------------------------------------------------------- Company Name Optional Subscribers company ---------------------------------------------------------------------------------------------------- Primary Phone Number Required Subscribers primary phone number. Area code, prefix and suffix ---------------------------------------------------------------------------------------------------- Secondary Phone Number Optional Subscribers secondary phone number. Area code, prefix and suffix ---------------------------------------------------------------------------------------------------- Fax Phone Number Optional Subscribers fax number. Area code, prefix and suffix ---------------------------------------------------------------------------------------------------- Street Required Subscribers Street address ---------------------------------------------------------------------------------------------------- Apt Optional Subscribers suite/apt or further address information ---------------------------------------------------------------------------------------------------- City Required Subscribers city ---------------------------------------------------------------------------------------------------- State Required Subscribers state ---------------------------------------------------------------------------------------------------- Zip Code Required Subscribers zip code ---------------------------------------------------------------------------------------------------- Email Address Required Subscribers E-mail address ---------------------------------------------------------------------------------------------------- Platform Optional Subscribers operating system. Default value is "none". A list of values can be worked out during the migration requirements. ---------------------------------------------------------------------------------------------------- Customer Status Optional Subscriber status. (Active, Inactive, Rejected, Suspended, Withhold) Default will be Active. - ------------------------------------------------------------------------------------------------------------------------------ Billing Account Billing Account ID Required This should be the value of the field which identifies the subscriber's billing account record in the old billing system. This will be used for reference and investigative purposes and to link to the contract information. ---------------------------------------------------------------------------------------------------- Can Pay For Others Optional Identifies whether this billing account can pay for more than one subscriber. Default is "No". ---------------------------------------------------------------------------------------------------- Termination Date Optional Date that the billing account was terminated. ---------------------------------------------------------------------------------------------------- Status Optional Billing account status (Active, Suspended, Rejected, Withhold) - ------------------------------------------------------------------------------------------------------------------------------ 19 ---------------------------------------------------------------------------------------------------- Billing Cycle Required Identifies the billing cycle that this Billing Account is processed under. A list of values can be worked out during the migration requirements. ---------------------------------------------------------------------------------------------------- Billing Cycle Type Required Identifies whether this Billing Account is processed monthly, quarterly, semi-annually or annually. ---------------------------------------------------------------------------------------------------- Currency Optional Default is USD ---------------------------------------------------------------------------------------------------- Payment Method Required Identifies whether this Billing Account is to be handled by as Credit Card or External Billling. ---------------------------------------------------------------------------------------------------- Credit Card Number Required If the Payment Method is Credit Card, then a valid credit card number must be supplied. ---------------------------------------------------------------------------------------------------- Expiration Date Required If the Payment Method is Credit Card, then a valid expiration date for the credit card must be supplied. ---------------------------------------------------------------------------------------------------- Name on Credit Card Required If the Payment Method is Credit Card, then the name associated with the credit card must be supplied. ---------------------------------------------------------------------------------------------------- Billing First Name Required If the Payment Method is External Billing, then a Billing First Name must be supplied. ---------------------------------------------------------------------------------------------------- Billing Middle Name Optional If the Payment Method is External Billing, then a Billing Middle Name may be supplied. ---------------------------------------------------------------------------------------------------- Billing Last Name Required If the Payment Method is External Billing, then a Billing Last Name must be supplied. ---------------------------------------------------------------------------------------------------- Billing Company Name Optional If the Payment Method is External Billing, then a Billing Company Name may be supplied. - ------------------------------------------------------------------------------------------------------------------------------ Contract/Service Info Contract ID Required This should be the value of the field which identifies the subscriber's contract account record in the old billing system. This will be used for reference and investigative purposes. ---------------------------------------------------------------------------------------------------- Billing Account ID Required This should be the value of the field which identifies the subscriber's billing account record that is linked to this contract. This will be used to tie the contract to the billing account. ---------------------------------------------------------------------------------------------------- Begin Date Required Date the contract started ---------------------------------------------------------------------------------------------------- Package ID Required Identifies the service package which is associated with this contract. ---------------------------------------------------------------------------------------------------- End Date Date the contract ended ---------------------------------------------------------------------------------------------------- Contract Status Optional Identifies the status of the contract. (Active, Expired, Pending Approval, Suspended, Rejected) - ------------------------------------------------------------------------------------------------------------------------------ 20 ---------------------------------------------------------------------------------------------------- Product Required Identifies the service product which is associated with this contract. ---------------------------------------------------------------------------------------------------- Primary Use Zip Required The primary use zip code ---------------------------------------------------------------------------------------------------- Network Required Identifies if CDPD or CDMA ---------------------------------------------------------------------------------------------------- EID Required EID ---------------------------------------------------------------------------------------------------- IP Address Required IP Address ---------------------------------------------------------------------------------------------------- Carrier Required Identifies the carrier of the wireless service ---------------------------------------------------------------------------------------------------- Side Preference Optional Modem side preference ---------------------------------------------------------------------------------------------------- PDA Type Required Type of PDA device. A list of values can be worked out during the migration requirements. ---------------------------------------------------------------------------------------------------- Modem Model Optional Modem model ---------------------------------------------------------------------------------------------------- User ID Required User's userid ---------------------------------------------------------------------------------------------------- Password Required User's password - ------------------------------------------------------------------------------------------------------------------------------
21 EX-10 4 ex10-2.txt Exhibit 10.2 EXECUTION COPY Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote such omissions. SALES AGENT AGREEMENT THIS SALES AGENT AGREEMENT ("Agreement") is effective as of September 25, 2002 ("Effective Date") between EarthLink, Inc., a Delaware corporation ("EarthLink"), and GoAmerica, Inc., a Delaware corporation ("Parent"), and GoAmerica Communications Corporation, a Delaware corporation and wholly-owned subsidiary of Parent ("Sub", and together with Parent, "GoAmerica"). EarthLink and GoAmerica are individually and collectively referred to herein as "Party" or "Parties." RECITALS In connection with this Agreement and as elements of an overall strategic relationship, the parties will simultaneously enter into (i) an Acquisition Agreement, pursuant to which EarthLink will purchase certain assets of GoAmerica (ii) a Technology Development Agreement, pursuant to which the parties will develop certain technologies for use in the wireless data services business, (iii) a License Agreement, pursuant to which the GoAmerica will license to EarthLink certain software and other technologies required by EarthLink to service the Transferred Assets, and (iv) an Escrow Agreement, which defines EarthLink's rights to access the source code for certain of the licensed software. This Agreement, together with the Acquisition Agreement, the Technology Development Agreement, the License Agreement, and the Escrow Agreement are referred to collectively as the "Related Agreements." The Parties agree that the Related Agreements collectively represent an integrated transaction and that none of the Related Agreements would have been executed but for the execution of the others. Thus, the Parties agree that the consideration provided for each of the Related Agreements is consideration provided in exchange for the Parties' duties and obligations under all of the Related Agreements and that such consideration is full and fair consideration for each of the Parties' duties and obligations under all of the Related Agreements. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and in the Related Agreements and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. DEFINITIONS. "Bounty" means the amount that EarthLink will pay GoAmerica for each Qualified Subscriber provided by GoAmerica as specifically set forth in Exhibit A. "Browser Only Subscribers" means any Go.Web browser only users for whom EarthLink is providing wireless access, billing, customer support and certain technical support, specifically excluding any Rogers AT&T Go.Web browser only users which will not be transferred to or supported by EarthLink under this Agreement. "Confidential Information" means any and all information related to the services and/or business of a Party that is treated as confidential or secret by the Party (that is, it is the subject of efforts by the disclosing Party that are reasonable under the circumstances to maintain its secrecy) including, but not limited to, the terms and conditions of this Agreement. Confidential Information will not include information (a) already lawfully known to or independently developed without reference to any Confidential Information by the receiving Party as evidenced by its written records, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party without any obligation of confidentiality. Confidential Information for the purposes of this agreement also includes Trade Secrets (as defined below) and information which has been disclosed to the disclosing Party by a third party and which the disclosing Party is obligated to treat as confidential or secret. "EarthLink Service" means EarthLink's mobile wireless Internet access service. "EarthLink Site" means, collectively, EarthLink's proprietary Web site accessible through the EarthLink Service located at www.earthlink.net and any other proprietary pages owned or controlled by EarthLink available through www.earthlink.net. "EarthLink Standard Access Fee" means the standard retail rates for EarthLink's mobile wireless Internet access service. "EarthLink Subscriber" means any authorized user of the EarthLink Service who as a result of this Agreement has contracted with EarthLink for the use of the EarthLink Service. "GoAmerica Services" means those products and services that EarthLink will be selling as an agent for GoAmerica as set forth on Exhibit B. "Marks" means all domain names, trademarks, trade names, service marks, logos and slogans associated with a Party's products or services. "Promotional Material" means advertising and other promotional communications, in any media which describes the EarthLink Service. "Promotional Period" means any period of time when new EarthLink Subscribers are offered EarthLink Services for less than EarthLink's Standard Access Fee. "Qualified Subscriber" means an EarthLink Subscriber who pays EarthLink the full and recurring EarthLink Standard Access Fee for at least two (2) consecutive months following any Promotional Period. "Setup Software" means EarthLink's copyrighted and branded suite of software that enables end-users to establish an account and access and use EarthLink Service. 2 "Subscriber Information" means information about EarthLink's Subscribers, such as the names, addresses, usernames, passwords, e-mail addresses of and financial information related to any EarthLink Subscribers, including but not limited to, mailing lists. Subscriber Information constitutes Confidential Information and will be used only for the promotional purposes set forth in this Agreement such as the mailing of Promotional Material. "Territory" means the United States, Canada, and as mutually agreed, in writing, by the Parties to this Agreement, other geographic areas. "Trade Secrets" means all non-public information whether tangible or intangible related to the services or business of the disclosing Party that: (a) derives economic value, actual or potential, from not being generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts by the disclosing Party that are reasonable under the circumstances to maintain its secrecy, including, without limitation, (i) marking any information reduced to tangible form clearly and conspicuously with a legend identifying its confidential or trade secret nature; (ii) identifying any oral communication as confidential or secret immediately before, during, or after such oral communication; or (iii) otherwise treating such information as confidential or secret. Assuming the criteria in clauses (a) and (b) above are met, Trade Secrets further includes, without limitation, technical and non-technical data, formulas, patterns, designs, compilations, computer programs and software, devices, inventions, methods, techniques, drawings, processes, financial data, financial plans, product plans, lists of actual or potential customers and suppliers which are not commonly known by or available to the public, research, development, and existing and future products. 2. DUTIES AND OBLIGATIONS OF THE PARTIES. 2.1 Duties and Obligations of GoAmerica. GoAmerica will have the following duties and obligations: a. Market EarthLink Service. GoAmerica will make reasonable best efforts to market and promote certain EarthLink Services, as determined by EarthLink and set forth on Exhibit B, via its direct and indirect channels of distribution, including but not limited to, promotional opportunities such as trade shows, web site, print campaigns, public relations or other such activities as may be agreed upon by the parties. b. Reports. GoAmerica shall (i) provide EarthLink with written detailed report(s) setting forth the number of new GoAmerica customers for the preceding calendar month and (ii) sales forecasts for the next [**] ([**]) months on a rolling basis within forty-five (45) days following the end of such calendar month. c. Taxes. GoAmerica is solely responsible for all taxes on bounties and other fees paid by EarthLink to GoAmerica under this Agreement, including all state and local use, sales, property (ad valorem) and similar taxes. d. Payment. GoAmerica shall pay the one time fees set forth in Exhibit F to EarthLink for any hardware provided to GoAmerica by EarthLink. 3 e. Payment Date. GoAmerica will pay any amounts owed to EarthLink hereunder, for an applicable calendar month within forty five (45) days following the end of such calendar month. f. Additional Terms. (i) GoAmerica agrees to pay all costs for any hardware and services for any non-standard SKU's when samples are offered to customers. In addition, GoAmerica acknowledges and agrees that certain fulfillment/shipping charges, as set forth on Exhibit E, will be applied to sample accounts, as well as, to customer shipments. (ii) EarthLink shall procure inventory on GoAmerica's behalf for any inventory hardware outside of existing EarthLink SKUs requested by GoAmerica. GoAmerica agrees that it carries inventory write-down risk associated with specific SKUs. In the event SKUs can be reasonably integrated (i.e. Go.Web installed on a standard EarthLink email device), EarthLink will adjust/modify the inventory to limit write-down exposure or out-of-stock scenarios. (iii) GoAmerica agrees to offer and include EarthLink's email, content and location based products and services, except to the extent EarthLink does not support a particular platform or network, as part of any platform, product bundle or other suite of services that GoAmerica offers or provides to carriers; provided however, the rejection of any EarthLink services or products as part of a bundled solution by a carrier will not be considered a breach by GoAmerica under this Agreement. Additionally, GoAmerica agrees that, subject to the immediately following subsection (iv) below, the EarthLink Services shall be the only services for which GoAmerica acts as an agent for each the following networks offered by EarthLink: (a) [**]; (b) [**]; (c) [**]; (d) [**] (except where [**] service is not offered); and (e) [**] (when available). (iv) EarthLink and GoAmerica agree that, as to each network/platform, the EarthLink Services will be the exclusive services offered and sold by GoAmerica provided the bounty paid (such bounty amount determined based on bounties proposed or offered by the carrier to GoAmerica in writing) by EarthLink is within [**] percent ([**]%) of the bounties paid by competitive carriers (whether a carrier is competitive shall be determined by EarthLink in its reasonable discretion) for substantially the same services (based on technical megabyte capabilities). EarthLink will have a right of first refusal to have GoAmerica act as its agent, on an exclusive basis (i.e., EarthLink Services will be the only services for which GoAmerica acts as a sales agent), for any new products and services not currently offered by EarthLink and for any products and services for which the bounty offered by EarthLink is outside of the foregoing [**] percent ([**]%) threshold. In the event EarthLink intends to cease offering or supporting 4 any network/platform for which GoAmerica is EarthLink's exclusive agent, then EarthLink shall give GoAmerica no less than one hundred twenty (120) days notice in order for GoAmerica to negotiate an appropriate arrangement with a third party. (v) EarthLink and GoAmerica agree that [**] and [**] platforms shall be considered to be interchangeable, except when specific products or coverage are not available or the specific platform is requested by a customer; provided GoAmerica may not directly or indirectly solicit or encourage, in any manner, a customer to request an alternate platform. 2.2 Duties and Obligations of EarthLink. EarthLink will have the following duties and obligations: a. Market GoAmerica Service. EarthLink will market and promote certain GoAmerica Services, as determined by GoAmerica and set forth on Exhibit G, via its direct and indirect channels of distribution, including but not limited to, promotional opportunities such as trade shows, web site, print campaigns, public relations or other such activities as may be agreed upon by the parties. b. Payment. EarthLink will pay GoAmerica the bounties set forth in Exhibit A for each EarthLink Subscriber that becomes a Qualified Subscriber as a result of GoAmerica's sales and marketing efforts under this Agreement. c. Taxes. EarthLink is solely responsible for all taxes on bounties and other fees paid by GoAmerica to EarthLink under this Agreement, including all state and local use, sales, property (ad valorem) and similar taxes. d. Reports. EarthLink shall provide GoAmerica with written detailed report(s) setting forth the number of new EarthLink Subscribers and Qualified Subscribers for the preceding calendar month within forty five (45) days following the end of such calendar month. Notwithstanding the foregoing, if there are no Qualified Subscribers for any month, no written report will be issued to GoAmerica and no Bounty will be paid. e. Pricing Terms. GoAmerica acknowledges and agrees that the EarthLink Standard Access Fees for EarthLink are subject to change at any time. EarthLink will provide GoAmerica with [**] days prior written notice regarding any change in the EarthLink Standard Access Fees. The current EarthLink Standard Access Fees are set forth in Exhibit B. f. Go.Web Browser. EarthLink shall pay GoAmerica a monthly service fee for each end user of the EarthLink Branded Go.Web browser (as contemplated by one or more of the Related Agreements) as set forth in Section II on Exhibit C. EarthLink shall pay GoAmerica a monthly service fee for paying Go.Web subscribers sold by GoAmerica in conjunction with the EarthLink Services as set forth in Section I on Exhibit C. g. Payment Date. EarthLink will pay any amounts owed to GoAmerica hereunder, including bounties, service fees and any other fees, for an applicable calendar month within forty five (45) days following the end of such calendar month. 5 2.3 Customer/Subscriber Information. GoAmerica agrees that any personally identifying information of any EarthLink Subscriber, including but not limited to name, address, email address or billing information will be used only for the purposes set forth in this Agreement. In no event shall either Party disclose, transfer, duplicate, reproduce, retain or use in any form all or any part of the other Party's customer information. Notwithstanding the foregoing, either Party, by mutual agreement, may use the other Party's mailing list to conduct a mail purge for the purpose of eliminating duplicate mailing names, provided this is done by an independent bonded service bureau. 2.4 Maintenance of Records; Audit. Each Party will maintain proper books and records so as to allow for the verification of amounts paid or owed to the other Party. During the term of this Agreement and for a period of One Hundred Thirty Five (135) days thereafter, upon at least thirty (30) days prior written notice, either Party will have the right to audit and analyze the other Party's records as they relate to payments due to the Party hereunder and to ensure compliance with all payment terms of this Agreement for twelve (12) months prior to the date of the audit. Unless agreed to otherwise in writing by the Parties, such audit will be conducted during the usual business hours and at the place of business of the Party being audited. Each Party will have the right to audit the other Party's applicable and relevant records no more than once every twelve (12) months. The audited books and records as well as the results of any such audit will be considered Confidential Information as set forth in this Agreement. The Party conducting the audit will bear the costs and expenses of the audit. In the event such an examination discloses that either party owes the other party an amount that is five percent (5%) or more than the fees actually paid for any six (6) month period, in addition to paying any additional amount which such audit may show is owed, the party that underpaid shall pay all costs reasonably incurred by the party conducting the audit in connection with the audit. 2.5 Billing Options. Subscribers who sign-up for the EarthLink Service through GoAmerica's promotional efforts will be asked to pay for the EarthLink Service with a major credit card or by customer invoice. EarthLink will bill EarthLink Subscribers the EarthLink Standard Access Fee on a monthly basis in accordance with Exhibit B. 2.6 No License Granted. Except as expressly granted herein, nothing in this Agreement shall be construed to constitute a grant by either Party of a license to any of the other Party's intellectual property rights, technical know-how, patent rights, copyrights, trademarks, tradenames, logos, product and proprietary identifiers or trade secrets, which are and shall remain the exclusive property of the respective Parties. 2.7 EarthLink Service. EarthLink, in its sole discretion, reserves the right to accept, or reject, any potential EarthLink Subscriber. EarthLink shall notify GoAmerica before any rejection or termination of an EarthLink Subscriber who is a Go.Web subscriber and shall discuss alternate pricing and credit arrangements as reasonably requested by GoAmerica. Additionally, EarthLink and each EarthLink Subscriber shall have the right, at any time, to terminate the EarthLink Service provided to an EarthLink Subscriber in accordance with the terms and conditions of EarthLink's Internet Service Agreement and related policies. 2.8 Right to Setoff. Either party (the "Offsetting Party") shall have the right to set off against payment due to the other party hereunder any amounts that the other party then owes 6 to the Offsetting Party, including, without limitation, any amounts subject to an indemnifiable claim, whether arising out of this Agreement or any of the Related Agreements. Prior to exercising this right, the Offsetting Party, through a vice president or higher officer, shall first attempt, in good faith, to resolve the matter giving rise to setoff to the satisfaction of both parties with a vice president or higher officer of the other party, but is not obligated to do so for more than [**] business days after the offsetting Party notifies the other Party of its offset right. 3. COORDINATION AND TRANSITION. 3.1 Upon the execution of this Agreement, GoAmerica and EarthLink shall respectively designate an employee of each of them to be responsible for communication and liaison with respect to this Agreement and concerning performance thereof. 3.2 EarthLink shall, in its discretion, provide to GoAmerica information concerning the marketing, sale and delivery of EarthLink Services and sales materials employed by EarthLink with respect thereto. GoAmerica shall, in its discretion, provide EarthLink information concerning the marketing, sale and delivery of GoAmerica Services and such sales materials employed by GoAmerica with respect thereto. 3.3 Upon [**] days prior written notice to GoAmerica, EarthLink may amend Exhibit A hereto for the purpose of adding or deleting products or services; provided however, EarthLink may delete products and services from Exhibit A upon no less than [**] days notice but as soon as practicable in the event EarthLink no longer has the right to sell such products and services. EarthLink also may delete from Exhibit A any product or service with respect to which EarthLink determines, in the reasonable discretion of EarthLink, that GoAmerica personnel are not sufficiently trained or otherwise qualified to properly market and sell such product or service. Notwithstanding anything herein to the contrary, EarthLink may at any time elect in its sole discretion to cease offering any product or service listed at any time in Exhibit A and the same shall be deemed deleted therefrom upon notice to GoAmerica hereunder of such discontinuance. Upon [**] days prior written notice to EarthLink, GoAmerica may amend Exhibit G hereto for the purpose of adding or deleting products or services; provided however, GoAmerica may delete products and services from Exhibit G upon no less than [**] days notice, but as soon as practicable, in the event GoAmerica no longer has the right to sell such products and services. GoAmerica also may delete from Exhibit G any product or service with respect to which GoAmerica determines, in the sole discretion of GoAmerica, that EarthLink personnel are not sufficiently trained or otherwise qualified to properly market and sell such product or service. Notwithstanding anything herein to the contrary, GoAmerica may at any time elect in its sole discretion to cease offering any product or service listed at any time in Exhibit G and the same shall be deemed deleted therefrom upon notice to EarthLink hereunder of such discontinuance. 7 4. RELATIONSHIP. 4.1 All sales of EarthLink Services hereunder shall be made pursuant to agreements for service between EarthLink and EarthLink Subscribers. All EarthLink Subscribers are deemed to be customers of EarthLink only. All sales of GoAmerica Services hereunder shall be made pursuant to agreements between GoAmerica and its customers. 4.2 GoAmerica shall act to secure sales by EarthLink hereunder and shall not be a customer of EarthLink nor purchase EarthLink Services for resale. All billings for purchases of EarthLink Services, Go.Web and other mutually agreed upon GoAmerica Services by EarthLink Subscribers hereunder will be made by EarthLink. EarthLink Subscribers and the users of the GoAmerica Services shall remit payment to EarthLink. Unless explicitly set forth as part of a payment or invoice, EarthLink shall apply all amounts received by EarthLink to amounts owed for EarthLink Services provided hereunder before applying to any amounts owed to GoAmerica prior to the Effective Date. EarthLink shall remit any amounts received by EarthLink that were paid or owed for GoAmerica Services to GoAmerica. GoAmerica shall remit any amounts received by GoAmerica that were paid or owed for EarthLink Services to EarthLink. All accounts receivables for EarthLink Services provided to EarthLink Subscribers are owned solely by EarthLink, specifically excluding any accounts owned by GoAmerica received by EarthLink. Nothing in this Agreement shall create any right or interest of GoAmerica in such accounts receivables. 4.3 EarthLink shall act to secure sales by GoAmerica hereunder and shall not be a customer of GoAmerica nor purchase GoAmerica Services for resale. All accounts receivables for GoAmerica Services to GoAmerica Subscribers are owned solely by GoAmerica, specifically excluding any accounts owned by EarthLink received by GoAmerica. Notwithstanding the foregoing, in the event of a conversion of Browser Only Subscribers from GoAmerica to EarthLink upon a termination of this Agreement in accordance with Section 9.3 herein, all accounts receivable for services provided to such Browser Only Subscribers after the effective date of termination of this Agreement shall be owned by EarthLink. 5. LICENSES AND STANDARDS. 5.1 Content License. To the extent a Party is providing the other Party with any of the providing Party's online content, the providing Party hereby grants to the other Party a non-exclusive license to use, reproduce, distribute, publicly perform, publicly display and digitally perform such providing Party's content on or in conjunction with the Setup Software and/or any other related promotional material provided such use is reasonably necessary to perform as contemplated by this Agreement. 5.2 Content Ownership. Each Party retains all right, title and interest in and to all intellectual property rights embodied in or associated with its own content. 5.3 Trademark License. (a) GoAmerica hereby grants to EarthLink, subject to the terms of this Agreement, a non-exclusive, nontransferable, non-sublicensable license to use the GoAmerica's Marks, throughout the Territory: (i) in links to or from the EarthLink Site, (ii) in conjunction with the Setup Software, and (iii) in or on promotional material, provided such uses 8 are reasonably necessary to perform as contemplated by this Agreement. (b) EarthLink hereby grants to GoAmerica, subject to the terms of this Agreement, a non-exclusive, non-transferable non-sublicensable, license to display and distribute the EarthLink Marks, throughout the Territory, in or on promotional material, provided such use is reasonably necessary to perform as contemplated by this Agreement. Each Party requires that each use of its Marks or the Marks of its licensors be in accordance with the identifiers listed in Exhibit D. Title to and ownership of the respective owner's Marks will remain with the owner. The license granted by the Mark holder does not include any ownership interest in its Mark or intellectual property and does not include the right to modify or alter in any way such Mark. 5.4 Trademark Restrictions. The licensee of any Marks hereunder will not take any action inconsistent with the owner's ownership of the Marks and any benefits accruing from use of such Marks will automatically vest in the owner. Neither Party will create any combination Marks with the other Party's Marks. If a Party's use of the licensed Marks does not conform to licensing Party's quality standards in the licensing Party's commercially reasonable opinion, the licensing Party will, in writing, notify the other Party of such nonconformance. If the other Party does not cure such nonconformance within ten (10) days of such notice, the licensing Party may terminate the license granted to the other Party hereunder. If the other Party does not cure such nonconformance within thirty (30) days of such notice, the licensing Party may immediately terminate this Agreement upon written notice to the other Party. 5.5 Promotional Material. Prior to the initial launch of any web pages or other Internet locations branded with the other Party's Marks including, but not limited to, the release of any marketing, advertising, press releases, or other Promotional Materials that references the other Party and/or the other Party's Marks, the releasing Party will submit a written request for approval to the other Party together with a copy of the Promotional Material to be released, which request will be made no less than ten (10) business days prior to the requested release date (the other Party will not unreasonably withhold or delay the granting of its approval thereof). Other than those representations contained in the Promotional Material, the releasing Party will make no representations regarding the other Party or the other Party Services. Neither releasing Party will not in any way modify the representations made by the other Party in the Promotional Materials. 5.6 Setup Software. In the event that Parties agree that GoAmerica will be distributing Setup Software, EarthLink grants GoAmerica a non-exclusive license to distribute the Setup Software in accordance with the terms of this Agreement. All rights, title, and interest in or to, and ownership of, the Setup Software will remain at all times exclusively with EarthLink. GoAmerica will not, nor will it permit others to: (i) reproduce or otherwise make copies of any portion of the Setup Software, (ii) modify, reverse engineer, decompile, disassemble, or otherwise attempt to determine or attempt to obtain access to the source code or the internal design of the Setup Software, or (iii) create any derivative works based on the Setup Software. In the event that EarthLink creates customized disks, jackets, welcome kits, and envelopes as described herein, EarthLink will retain ownership of all of the intellectual property rights contained therein, specifically excluding GoAmerica's Marks, including without limitation the design and look and feel of such disks, jackets, welcome kits and envelopes. Each disk will have a unique registration number to track EarthLink Subscribers. 9 5.7 Authorization to Act on Behalf of EarthLink. Other than those representations contained in Promotional Materials, GoAmerica shall make no representations regarding EarthLink or the EarthLink Service and shall not modify in any way the representations made by EarthLink in Promotional Materials. EarthLink alone shall have the right to approve and accept all orders for EarthLink Service solicited by GoAmerica, which approval and acceptance shall be at EarthLink's sole discretion. GoAmerica is expressly prohibited from binding EarthLink in any way. 5.8 Limits. There are no implied licenses under this Agreement, and any rights not expressly granted to a licensee hereunder are reserved by the licensor or its suppliers. Neither Party will exceed the scope of the licenses granted hereunder. 6. REPRESENTATIONS AND WARRANTIES. 6.1 EarthLink. EarthLink represents and warrants to GoAmerica that: (1) EarthLink has the power and authority to enter into and perform its obligations under this Agreement and (2) EarthLink has the full and exclusive right to grant or otherwise permit GoAmerica to use EarthLink's Marks and to distribute the Setup Software in accordance with the terms of this Agreement. If EarthLink's intellectual property rights included in the Setup Software are alleged or held to infringe the intellectual property rights of a third party, EarthLink will, at its own expense, and in its sole discretion, (i) procure for GoAmerica the right to continue to use the allegedly infringing intellectual property or (ii) replace or modify the intellectual property to make it non-infringing; provided, however, if neither option is possible or economically feasible and if the inability to use such intellectual property would cause a material breach of this Agreement (as determined by GoAmerica), GoAmerica will immediately stop distributing the Setup Software and may immediately terminate this Agreement upon written notice to EarthLink. 6.2 GoAmerica. GoAmerica represents and warrants to EarthLink that: (1) GoAmerica has the power and authority to enter into and perform its obligations under this Agreement; (2) GoAmerica has the full and exclusive right to grant or otherwise permit EarthLink to use GoAmerica's Marks; and (3) that this Agreement does not conflict with any other agreements to which GoAmerica was, is now, or will become, obligated. If GoAmerica's intellectual property rights are alleged or held to infringe the intellectual property rights of a third party, GoAmerica will, at its own expense, and in its sole discretion, (i) procure for EarthLink the right to continue to use the allegedly infringing intellectual property, or (ii) replace or modify the intellectual property to make it non-infringing; provided, however, if neither option is possible or economically feasible and if the inability to use such intellectual property would cause a material breach of this Agreement (as determined by EarthLink), EarthLink may immediately terminate this Agreement upon written notice to GoAmerica. 7. CONFIDENTIALITY. Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course of this Agreement. Each Party agrees that it will take reasonable steps, which will include, at a minimum, the steps it takes to protect its own Confidential Information, to prevent the duplication or disclosure of Confidential Information, other than by or to its employees or agents who must have access to the Confidential Information to perform such Party's obligations hereunder, who will each agree to comply with the terms of this 10 Section. Each Party agrees that if it is required by law to disclose the other Party's Confidential Information, such disclosing Party must first give written notice of such required disclosure to the other Party and such other Party will have a reasonable opportunity to prevent or limit the third party disclosure. Each Party will protect the other Party's Confidential Information during the Term of this Agreement and for two (2) years after the termination or expiration of this Agreement. 8. LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION. 8.1 Limitation of Liability. In no event will either Party be liable to the other Party for any loss of profits, loss of business, loss of use or data, interruption of business, or for indirect, special, incidental, exemplary, multiple, punitive or consequential damages of any kind, whether based on contract, tort (including without limitation, negligence), warranty, guarantee or any other legal or equitable grounds, even if such Party has been advised of the possibility of such damages. In no event will either Party be liable to the other Party for any representation or warranty made to any end user or third party by the other Party. These limitations will survive and apply notwithstanding the validity of the limited remedies provided for in the agreement. The limitations set forth in this Section will not apply to the Parties' indemnification obligations set forth below and will not affect either Party's right to seek injunctive relief. 8.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE EARTHLINK SERVICE OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. 8.3 Indemnity. Each Party agrees to indemnify, and hold harmless the other Party and its officers, directors, employees, agents, successors and assigns from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including, but not limited to, reasonable attorneys' fees) related to: (a) claims made by third parties against the indemnified Party alleging that the indemnifying Party's Marks or other intellectual property infringes the patents, copyrights, trademarks or service marks or other intellectual property rights of such third parties or (b) any misrepresentation, breach or default by of, or under, any of the representations, covenants, agreements or other provisions of this Agreement or any Related Agreement or document executed in connection herewith. Each Party agrees to promptly notify the indemnifying Party in writing of any indemnifiable claim. The indemnified Party will cooperate in all reasonable respects with the indemnifying Party and its attorneys in the investigation, trial, defense and settlement of such claim and any appeal arising there from. The indemnified Party may participate in such investigation, trial, defense and settlement of such claim and any appeal arising there from, through its attorneys or otherwise, at its own cost and expense. No settlement of a claim will be entered into without the consent of the indemnified Party, which consent will not be unreasonably withheld, unless the settlement includes an unconditional general release of the indemnified Party. 11 8.4 Limitations on Indemnity. EarthLink will have no obligation hereunder for any claims, actions or demands that result from: (a) use of Setup Software in a combination that violates the rights of third parties or in a combination with materials or products not supplied by EarthLink; or (b) the modification of Setup Software by parties other than EarthLink. 9. TERM, RENEWAL AND TERMINATION. 9.1 Term. The initial term of this Agreement will be two (2) years from the Effective Date of this Agreement ("Initial Term"). After the Initial Term, this Agreement will automatically renew (any such renewal date referred to herein as a "Renewal Date") for separate, consecutive one (1) year terms ("Renewal Term(s)") unless written notice of termination is given by EarthLink one hundred and eighty (180) days prior to the expiration of the Initial Term or any Renewal Term(s). The Initial Term and any Renewal Term(s), if any, will be referred to herein as the "Term". 9.2 Termination. This Agreement shall terminate automatically and immediately upon the termination of the Acquisition Agreement. Except as may be contained otherwise herein, this Agreement may be terminated by the Parties as follows: (a) either Party may terminate this Agreement at any time in the event of a material breach by the other Party of this Agreement that remains uncured thirty (30) days after the breaching Party's receipt of written notice of the breach; (b) either Party may terminate this Agreement immediately if the other Party is unable to pay its debts as due, or enters into or files (or has filed or commenced against it) a petition, arrangement, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or similar laws of the United States or any state of the United States; (c) either Party may terminate this Agreement, at its option for convenience, upon one hundred and eighty (180) days written notice; and (d) EarthLink may terminate this Agreement immediately upon written notice upon the termination of any of the Related Agreements for an uncured material breach, including without limitation, any termination of any Related Agreements due to the occurrence of a Release Condition. 9.3 Effects of Expiration or Termination. a. Upon expiration or termination of the Agreement, GoAmerica's license to use EarthLink's Marks will terminate and GoAmerica will cease distributing the Setup Software. Within a reasonable period after the expiration or termination of this Agreement for any reason, each Party will return to the other Party any and all documents or other media, excluding any Deliverables of Licensed Software, embodying any use of the other Party's Marks (including specifically, but not limited to, any copies of the Setup Software that have not been distributed at the time of expiration or termination). Upon the expiration or termination of this Agreement, all rights and obligations of the Parties under this Agreement will terminate, except the rights and obligations under Sections 2.1(c), 2.1(d), 2.1(e), 2.2(c), 2.2(g), 2.3, 2.4, 2.6, 2.7, 2.8, 4, 5, 7, 8, 9 and 10 herein will survive expiration or termination of the Agreement. b. In addition, upon any termination of this Agreement, EarthLink will continue to have bounty payment obligations under Section 2.2(b) with respect to EarthLink Subscribers who became EarthLink Subscribers before the effective date of termination but who become Qualified Subscribers after the effective date of termination (as evidenced by 12 EarthLink's records), but shall have no other payment obligations of any kind to GoAmerica arising after the effective date of termination. c. In the event of (i) a non-renewal of this Agreement by EarthLink under Section 9.1, (ii) termination of this Agreement by EarthLink for convenience under Section 9.2(c), (iii) termination of this Agreement by GoAmerica for uncured material breach under Section 9.2(a) or (iv) termination of this Agreement by GoAmerica for convenience under Section 9.2(c) at any time following the initial two (2) year term of this Agreement, EarthLink will work with GoAmerica for a period of one hundred eighty (180) days from the effective date of termination or expiration date of this Agreement, to provide for the transfer to GoAmerica (or its designee) any Browser Only Subscribers for which EarthLink has not paid a bounty. Notwithstanding the foregoing, Browser Only Subscribers for which EarthLink has paid a bounty shall be the exclusive customers of EarthLink for all purposes, including without limitation, the Go.Web browser services in accordance with EarthLink's license rights under the License Agreement, without any further payment obligations of any kind from EarthLink to GoAmerica. d. The Parties agree that upon any termination of this Agreement (i) by GoAmerica for convenience under Section 9.2(c) at any time prior to the expiration of the initial two (2) year term of this Agreement or (ii) by EarthLink in accordance with Section 9.2(a), 9.2(b) or 9.2(d), all of the Browser Only Subscribers for which EarthLink has not paid a bounty shall become exclusive customers of EarthLink for purposes of the Go.Web browser services in, without any further payment obligations of any kind from EarthLink to GoAmerica. e. In the event any Browser Only Subscribers become customers of EarthLink under this Section 9.3, GoAmerica agrees to work with EarthLink to support and to take any steps necessary to effectuate any necessary conversion of the customer relationship from GoAmerica to EarthLink, including without limitation, assigning any customer agreements to EarthLink. 10. GENERAL PROVISIONS. 10.1 Entire Agreement. This Agreement, any exhibits attached hereto and each of the other Related Agreements, constitute the entire understanding and agreement with respect to the subject matter hereof and thereof, and supersede any and all prior understandings and agreements, whether oral or written, between the parties relating to the subject matter hereof and thereof, all of which are merged in this Agreement and the other Related Agreements. The Agreement shall not be revised, amended, or in any way modified except in writing executed by both parties. 10.2 Waivers. The waiver by any party of any of its rights or breaches of the other party under this Agreement in a particular instance shall not be construed as a waiver of the same or different rights or breaches in subsequent instances. All remedies, rights, undertakings and obligations hereunder shall be cumulative and none shall operate as a limitation of any other remedy, right, undertaking or obligation thereof. No failure or delay by any party in exercising any right, power or privilege hereunder (and no course of dealing between or among any of the parties) shall operate as a waiver of any such right, power or privilege. 13 10.3 Expenses. Each of the parties shall bear all costs, charges and expenses incurred by such party in connection with this Agreement and the consummation of the transactions contemplated herein, except as expressly provided for in this Agreement. 10.4 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of GoAmerica and EarthLink and each of their respective heirs, representatives, successors, and permitted assigns, in accordance with the terms hereof. This Agreement shall not be assignable by GoAmerica without the prior written consent of EarthLink. This Agreement shall be assignable by EarthLink to any of its affiliates without the prior written consent of GoAmerica. 10.5 Governing Law. The laws of Delaware shall govern this Agreement without giving effect to applicable conflict of laws provisions. The federal and state courts located in Atlanta, Georgia alone have jurisdiction over all disputes brought by GoAmerica arising out of or related to this Agreement. GoAmerica consents to the personal jurisdiction of such courts sitting in Georgia with respect to such matters, and waives GoAmerica's rights to removal or consent to removal. The federal and state courts located in Newark, New Jersey alone have jurisdiction over all disputes brought by EarthLink arising out of or related to this Agreement. EarthLink consents to the personal jurisdiction of such courts sitting in New Jersey with respect to such matters, and waives EarthLink's rights to removal or consent to removal. In the event any litigation or other proceeding is brought by either party in connection with this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to recover from the other party all costs, reasonable attorneys' fees and other reasonable expenses incurred by such prevailing party in such litigation. 10.6 Severability of Provisions. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. 10.7 Notices. All notices or other communications hereunder shall be in writing and shall be delivered by hand, facsimile or sent, postage prepaid, by registered or certified mail or reputable overnight courier service and shall be deemed given when so delivered by hand or facsimile, or, if mailed, five days after mailing (one business day in the case of overnight courier) addressed to the intended recipient as set forth below: If to GoAmerica: Aaron Dobrinsky Chairman and CEO GoAmerica, Inc. 433 Hackensack Avenue Hackensack, NJ 07601 Fax: 201-527-1772 with a copy to: GoAmerica, Inc. ATTN: General Counsel 433 Hackensack Avenue Hackensack, NJ 07601 Fax: 201-527-1081 14 If to EarthLink: Brent Cobb Vice President EarthLink, Inc. 1375 Peachtree Street Atlanta, GA 30309 Fax: 404-287-4905 with copies to: EarthLink, Inc. 1375 Peachtree Street Atlanta, GA 30309 Attn: Legal Department Fax: 404-287-4905 Hunton & Williams 600 Peachtree Street, NE Suite 4100 Atlanta, GA 30308 Attn: W. Tinley Anderson, III Fax: 404-888-4190 10.8 No Third Party Benefits. EarthLink and GoAmerica acknowledge, agree and intend that this Agreement was entered into solely for the respective benefit of each of them and their respective successors and assigns and nothing herein shall be construed as giving any person, firm, corporation or other entity (including, without limitation on the foregoing, any customer), other than the parties hereto and their respective successors and assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof. 15 The Parties hereto have executed this Agreement as of the Effective Date. EARTHLINK, INC. GOAMERICA, INC. By: /s/Brent Cobb By: /s/Aaron Dobrinsky ------------------------------ --------------------------- Print: Brent Cobb Print: Aaron Dobrinsky le: Vice President Title: CEO Date: September 25, 2002 Date: September 25, 2002 GOAMERICA COMMUNICATIONS CORP. By: /s/Aaron Dobrinsky --------------------------- Print: Aaron Dobrinsky Title: CEO Date: September 25, 2002 [Signature Page to EarthLink-GoAmerica Sales Agent Agreement] 16 EXHIBIT A Payment Terms I. Qualified Subscriber Bounty. EarthLink will pay GoAmerica the following one-time bounty for each Qualified Subscriber (as defined in the Agreement):
- ----------------------------------------------------------------------------------------------- Device Network ARPU Bounty - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**} [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- [**] [**] $[**] $[**] - -----------------------------------------------------------------------------------------------
Note: Voice products will be addressed in an addendum. II. Software Bounty. EarthLink will pay GoAmerica the following one-time bounty for any software GoAmerica sells on behalf of EarthLink: - ----------------------------------------------------------------------------- Software Bounty - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**]/yr/server - ----------------------------------------------------------------------------- [**] $[**]/10 pack - ----------------------------------------------------------------------------- [**] $[**]/yr/10 pack - ----------------------------------------------------------------------------- 17 III. Non-Wireless Services Bounty. EarthLink will pay GoAmerica the following one-time bounty for each Qualified Subscriber (as defined in the Agreement):
- ---------------------------------------------------------------------------------------------------------------------- EARTHLINK SERVICE PLAN MONTHLY FEE BOUNTY - ---------------------------------------------------------------------------------------------------------------------- Dial-up Unlimited Dial-up Monthly $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- DSL EarthLink DSL $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz DSL 144 Kbps $[**] $[**] IDSL - ---------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz DSL 192 Kbps $[**] $[**] SDSL - ---------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz DSL 384 Kbps $[**] $[**] SDSL - ---------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz DSL 768 Kbps $[**] $[**] SDSL - ---------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz DSL 1.1 Mbps $[**] $[**] SDSL - ---------------------------------------------------------------------------------------------------------------------- DSL EarthLink $[**] $[**] Biz DSL 1.5 Mbps SDSL - ---------------------------------------------------------------------------------------------------------------------- Satellite Direcway Dish $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- Satellite DirecDuo Dish $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- Cable Time Warner $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- Web Hosting Startersite $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- Web Hosting Prosite $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- Web Hosting Premiumsite $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- Web Hosting Store $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- Web Hosting SuperStore $[**] $[**] - ---------------------------------------------------------------------------------------------------------------------- Web Hosting SuperStore $[**] $[**] Unlimited - ----------------------------------------------------------------------------------------------------------------------
18 EXHIBIT B EarthLink Services; EarthLink Standard Access Fees I. EarthLink Services. The products and services of EarthLink for which GoAmerica may market, promote and solicit sales are:
EarthLink Standard Access Fees(1) - --------------------------------------------------------------------------------------------------------------------------- EARTHLINK SERVICE PLAN MONTHLY FEE PROMOTIONAL INSTALLATION EQUIPMENT FEE TERMINATION FEE PERIOD FEE - --------------------------------------------------------------------------------------------------------------------------- Dial-up Unlimited $[**] [**] [**] [**] [**] Dial-up Monthly - --------------------------------------------------------------------------------------------------------------------------- DSL EarthLink DSL $[**] [**] [**] [**] $[**] - --------------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz $[**] [**] $[**] $[**] $[**] DSL 144 Kbps IDSL - --------------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz $[**] [**] $[**] $[**] $[**] DSL 192 Kbps SDSL - --------------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz $[**] [**] $[**] $[**] $[**] DSL 384 Kbps SDSL - --------------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz $[**] [**] $[**] $[**] $[**] DSL 768 Kbps SDSL - --------------------------------------------------------------------------------------------------------------------------- DSL EarthLink Biz $[**] [**] $[**] $[**] $[**] DSL 1.1 Mbps SDSL - --------------------------------------------------------------------------------------------------------------------------- DSL EarthLink $[**] [**] $[**] $[**] $[**] Biz DSL 1.5 Mbps SDSL - --------------------------------------------------------------------------------------------------------------------------- Satellite Direcway Dish $[**] [**] $[**] $[**] $[**] - --------------------------------------------------------------------------------------------------------------------------- Satellite DirecDuo Dish $[**] [**] $[**] $[**] $[**] - --------------------------------------------------------------------------------------------------------------------------- Cable Time Warner $[**] [**] [**] [**] [**] - ---------------------------------------------------------------------------------------------------------------------------
- -------- (1) Prices and fees [**] listed above. 19
EarthLink Standard Web Hosting Fees(2) - ---------------------------------------------------------------------------------------------------------------------------- EARTHLINK SERVICE PLAN MONTHLY FEE PROMOTIONAL SETUP EQUIPMENT FEE TERMINATION FEE PERIOD FEE - ---------------------------------------------------------------------------------------------------------------------------- Web Hosting Startersite $[**] [**] $[**] [**] [**] - ---------------------------------------------------------------------------------------------------------------------------- Web Hosting Prosite $[**] [**] $[**] [**] [**] - ---------------------------------------------------------------------------------------------------------------------------- Web Hosting Premiumsite $[**] [**] $[**] [**] [**] - ---------------------------------------------------------------------------------------------------------------------------- Web Hosting Store(3) $[**] [**] $[**] [**] [**] - ---------------------------------------------------------------------------------------------------------------------------- Web Hosting SuperStore $[**] [**] $[**] [**] [**] - ---------------------------------------------------------------------------------------------------------------------------- Web Hosting SuperStore $[**] [**] $[**] [**] [**] Unlimited - ----------------------------------------------------------------------------------------------------------------------------
II. EarthLink Standard Access Fees. EarthLink's Standard Access Fees as of the Effective Date are set forth in the following chart: - -------------------------------------------------------------------------- Device Service Recurring Maintenance fee - -------------------------------------------------------------------------- [**] [**] $[**] - -------------------------------------------------------------------------- [**] [**] $[**] - -------------------------------------------------------------------------- [**] [**] $[**] - -------------------------------------------------------------------------- [**] [**] $[**] - -------------------------------------------------------------------------- [**] [**] $[**] - -------------------------------------------------------------------------- [**] [**] $[**] - -------------------------------------------------------------------------- [**] [**] $[**] - -------------------------------------------------------------------------- Note: Voice pricing will be addressed in an addendum. - -------- (2) Prices and fees [**] listed above. (3) [**]. 20 EXHIBIT C EarthLink Payment Terms I. Service Fees. EarthLink shall pay GoAmerica a monthly service fee for each Qualified Subscriber according to the schedule below. a. In accordance with Section 2.2.3 of the Acquisition Agreement, GoAmerica shall transfer all current Browser Only Subscribers to EarthLink for purposes of EarthLink providing wireless access, billing, customer support and certain technical support. During the term of this Agreement, EarthLink shall pay the monthly service fee set forth in the following schedule for any Browser Only Subscribers who are transferred to EarthLink:
- ----------------------------------------------------------------------------------------------- Version Network ARPU Service Fee - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - -----------------------------------------------------------------------------------------------
b. During the term of this Agreement, EarthLink shall pay the monthly service fee set forth in the following schedule applies for all Browser Only Subscribers that GoAmerica acquires through its sales and marketing efforts with EarthLink as the billing party:
- ----------------------------------------------------------------------------------------------- Version Network ARPU Service Fee - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - ----------------------------------------------------------------------------------------------- Go.Web [**] $[**] $[**] - -----------------------------------------------------------------------------------------------
II. EarthLink Branded Browser. During the term of this Agreement EarthLink shall pay GoAmerica a monthly service fee of [**]$[**] per user per month for an EarthLink Branded Go.Web browser sold by EarthLink on all platforms irrespective of EarthLink's charges to Subscribers. EarthLink will use commercially reasonable efforts to work with GoAmerica regarding bundling of each Party's products to maximize the value of each party's products in the marketplace. 21 EXHIBIT D Marks I. EarthLink Marks. NOTE: THIS SECTION I OF EXHIBIT D MAY BE AMENDED FROM TIME TO TIME AS REQUIRED BY EARTHLINK AND ALL SUCH AMENDMENTS WILL BE INCORPORATED HEREIN. Trademarks, trade names, logos and other product and proprietary identifiers. EarthLink(R) EarthLink 5.0(TM) EarthLink DSL(TM) EarthLink Biz DSL(TM) EarthLink Personal Start Page (SM) EarthLink TotalAccess2003 (TM) EarthLink(R) is a registered trademark of EarthLink, Inc. EarthLink 5.0(TM) is a trademark of EarthLink, Inc. EarthLink DSL(TM) is a trademark of EarthLink, Inc. EarthLink Biz DSL(TM) is a trademark of EarthLink, Inc. EarthLink Personal Start Page (SM) is a service mark of EarthLink, Inc. EarthLink TotalAccess2003 (TM) is a trademark of EarthLink, Inc. II. GoAmerica Marks. NOTE: THIS SECTION II OF EXHIBIT D MAY BE AMENDED FROM TIME TO TIME AS REQUIRED BY GOAMERICA AND ALL SUCH AMENDMENTS WILL BE INCORPORATED HEREIN. GoAmerica(R) is a registered trademark of GoAmerica, Inc. Go.Web(R) is a registered trademark of GoAmerica, Inc. Go.Web OnPrem (SM) is a registered service mark of GoAmerica, Inc. Mobile Office(R) is a registered trademark of GoAmerica, Inc. Unregistered marks of GoAmerica, Inc. used in the U.S.: MobileClips(TM) QueueManager(TM) Document Manager(TM) Document Manager OnPrem(TM) 22 EXHIBIT E EarthLink Fulfillment Services GoAmerica shall pay the following fulfillment/shipping charges for sample accounts and customer shipments requested by GoAmerica: IT development services-one time fee Open Orders systems setup....................................... $[**] - ------------------------------------------------------------------------------------------------------------ Web based reporting setup ...................................... [**] - ------------------------------------------------------------------------------------------------------------ Data transmission (Push / Pull /Activation File Development).... $[**]- $[**] est. ============================================================================================================ Project management/Implementation services- one time fee Project design and management................................... $[**] - ------------------------------------------------------------------------------------------------------------ Inventory receipt, storage and management - For Unique Go America units Receipt of material into CNX, including standard inspection, entry into Open Orders and prepare for stocking (single SKU's per skid only) ......................... $[**] per skid - ------------------------------------------------------------------------------------------------------------ Receipt of material shipped with multiple SKU's ............... $[**] per box - ------------------------------------------------------------------------------------------------------------ Scanning of barcode............................................. $[**] per unit - ------------------------------------------------------------------------------------------------------------ Per receipt session ............................................ $**] minimum charge - ------------------------------------------------------------------------------------------------------------ Once a year physical count...................................... $[**] per hour - ------------------------------------------------------------------------------------------------------------ Storage of items in bulk skid positions ........................ $[**] per skid position - ------------------------------------------------------------------------------------------------------------ Storage of items in caged storage .............................. $[**] per skid position - ------------------------------------------------------------------------------------------------------------ Prepare and return to suppler, ORM., vendor..................... $[**] per hour - ------------------------------------------------------------------------------------------------------------ Stock destruction............................................... $[**] per hour - ------------------------------------------------------------------------------------------------------------ Miscellaneous standard warehouse labor charge................... $[**] per hour ============================================================================================================ "Flashing" of memory for modems - ------------------------------------------------------------------------------------------------------------ Flashing of memory for Handspring modems (Unpack unit, place in cradle, install s/w (? min), pack unit, apply new labels if needed). ................................... $[**] per hour ============================================================================================================ Note: Any additional kitting and assembly will be charged at the standard kitting and assembly fee noted below. ============================================================================================================ Order fulfillment- Direct to Consumer Order processing generate pick list and related label, assemble order, and ship, excluding freight .................................... $[**] per order - ------------------------------------------------------------------------------------------------------------ Pick, pack, and single outbound scan of serialized items ....... $[**] per unit - ------------------------------------------------------------------------------------------------------------ 23 Order fulfillment- Misc. Authorize and process credit card payments ..................... $[**] per transaction - ------------------------------------------------------------------------------------------------------------ Expedite order processing....................................... $[**] per order - ------------------------------------------------------------------------------------------------------------ Return processing............................................... $[**] per return - ------------------------------------------------------------------------------------------------------------ Additional item return processing............................... $[**] per item - ------------------------------------------------------------------------------------------------------------ Exchange orders processed from returns not sent by CNX.......... $[**] per order - ------------------------------------------------------------------------------------------------------------ Manual order entry.............................................. $[**] per order - ------------------------------------------------------------------------------------------------------------ Creation of call tag............................................ $[**] per order - ------------------------------------------------------------------------------------------------------------ Kitting and assembly............................................ $[**] per kit component - ------------------------------------------------------------------------------------------------------------ Minimum charge per kitting/assembly session .................... $[**] per session - ------------------------------------------------------------------------------------------------------------ Packing materials and supplies ................................. [**]% - ------------------------------------------------------------------------------------------------------------ *Freight costs.................................................. [**]% Vendor Management Fee - ------------------------------------------------------------------------------------------------------------ Fax handling (Inbound/outbound)................................. $[**] per page ============================================================================================================ Email notifications $[**] up to [**] per month $[**] between [**] and [**] per month $[**] over [**] per month ============================================================================================================
*Freight Cost will vary on fuel surcharges per UPS. 24 EXHIBIT F One-Time Fees One Time Fees. GoAmerica will pay EarthLink the following One Time Fees for any hardware provided to GoAmerica by EarthLink. - ----------------------------------------------------------------------------- Hardware GOAM Price - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**]/yr/server - ----------------------------------------------------------------------------- [**] $[**]/10 pack - ----------------------------------------------------------------------------- [**] $[**]/yr/10 pack - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- [**] $[**] - ----------------------------------------------------------------------------- 25 EXHIBIT G GoAmerica Services I. GoAmerica Services/Bounties. The products and services of GoAmerica for which EarthLink will market, promote and solicit sales and the bounties that GoAmerica will pay EarthLink are set forth in the following chart:
------------------------------------------------------------------------------------------------------------ Product Retail Price Bounty ------------------------------------------------------------------------------------------------------------ |- | Document Manager OnPrem | Initial 20 User Pack License: $[**] $[**] | - Consists of File Manager | and Attachment ---------------------------------------------------------------- | Companion individual Additional Seats $[**] per seat | components [**]: $[**] per seat | [**]: $[**] per seat | [**]: $[**] per seat ============================================================================================================ S O Initial 20 User Pack License: $[**] $[**] F Attachment Companion T ---------------------------------------------------------------- W - Individual component of Additional Seats $[**] per seat A Document Manager OnPrem [**]: $[**] per seat R that can be sold separately [**]: $[**] per seat E [**]: $[**] per seat [**]+: $[**] per seat | ============================================================================================================ | | Initial 20 User Pack License: $[**] $[**] | File Companion | ---------------------------------------------------------------- | - Individual component of Additional Seats $[**] per seat | Document Manager OnPrem that [**]: $[**] per seat | can be sold separately [**]: $[**] per seat | [**]: $[**] per seat | [**]+: $[**] per seat |- ============================================================================================================ A |- S Attachment Reader Basic $[**] per user per month [**] P S (Monthly hosted service) E ------------------------------------------------------------------------------------------------------------ H R O V Document Manager, a.k.a Mobile S I Office Package A $[**] per user per month [**] T |C E |E (Monthly hosted service - includes D | Attachment Reader Basic) | ------------------------------------------------------------------------------------------------------------ | | Mobile Office Package B $[**] per user per month [**] |- (Monthly hosted service) ------------------------------------------------------------------------------------------------------------ Mobile Office Package C $[**] per user per month [**] (Monthly hosted service) ============================================================================================================
26 EX-10 5 ex10-3.txt EXECUTION COPY Exhibit 10.3 Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. TECHNOLOGY DEVELOPMENT AGREEMENT THIS TECHNOLOGY DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of the 25th day of September, 2002 (the "Effective Date") by and between EarthLink, Inc., a Delaware corporation ("EarthLink"), GoAmerica, Inc., a Delaware corporation ("Parent"), and GoAmerica Communications Corporation, a Delaware corporation and wholly-owned subsidiary of Parent ("Sub" and together with Parent, "GoAmerica"). EarthLink and GoAmerica may be referred to herein as "Party" and together, the "Parties"). RECITALS In connection with this Agreement and as elements of an overall strategic relationship, the parties and GoAmerica's wholly-owned subsidiary GoAmerica Communications Corp. will simultaneously enter into (i) a bilateral Sales Agent Agreement, pursuant to which each party will serve as a sales agent for certain of the products and services of the other party, (ii) an Acquisition Agreement, pursuant to which EarthLink will purchase certain of GoAmerica's assets, (iii) a License Agreement, pursuant to which GoAmerica will license to EarthLink certain software and other technologies, and (iv) an Escrow Agreement, which defines EarthLink's rights to access the source code for certain of the licensed software. This Agreement, together with the Sales Agent Agreement, the Acquisition Agreement, the License Agreement and the Escrow Agreement are referred to collectively as the "Related Agreements." The Parties agree that the Related Agreements collectively represent an integrated transaction and that none of the Related Agreements would have been executed but for the execution of the others. Thus, the Parties agree that the consideration provided for each of the Related Agreements is consideration provided in exchange for the Parties' duties and obligations under all of the Related Agreements and that such consideration is full and fair consideration for each of the Parties' duties and obligations under all of the Related Agreements. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and in the Related Agreements and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. SERVICES AND ACCEPTANCE 1.1 Services. GoAmerica shall perform various types of technical and professional services ("Services") in accordance with the relevant Statement of Work attached hereto, which is incorporated by reference. Each subsequent Statement of Work will be sequentially numbered for ease of reference and is hereby incorporated by reference. The Statements of Works will describe the Services to be performed by GoAmerica, the dates for the performance of the Services (as defined in the applicable Statement of Work), GoAmerica's obligations and other mutually agreed upon requirements necessary for completion of the Services, the work product to be delivered by GoAmerica, including but not limited to, all software (including the Source Code, object code and reasonable Documentation relating thereto), content, designs, design documents and all other material and information, whether or not copyrightable ("Deliverables"), and any other terms that apply to that specific Statement of Work. In the event of a conflict between any Statement of Work and this Agreement, the terms and conditions of this Agreement shall supersede the terms and conditions of the Statement of Work. 1.2 Acceptance. Each Deliverable provided to EarthLink under this Agreement shall be subject to Acceptance (as defined in the applicable Statement of Work) by EarthLink. The parties shall label any Deliverables that EarthLink deems material as a Critical Deliverable ("Critical Deliverable") in the applicable Statement of Work. If EarthLink determines in its reasonable judgment that any Deliverable is not Acceptable, then EarthLink shall issue a written report to GoAmerica specifying the failure to perform or comply with the specifications or requirements for the Deliverable set forth in the applicable Statement of Work. If EarthLink chooses not to accept a Critical Deliverable, GoAmerica will supply a corrected version of the Critical Deliverable to EarthLink within [**] business days, or such other time as agreed by the Parties in writing if the parties reasonably determine that the Critical Deliverable cannot be corrected within such [**] business day period, after receipt from EarthLink of its report of problems, non-compliance or deficiencies. If a Critical Deliverable shall fail to achieve Acceptance within [**] business days, or such other period agreed to by the parties in writing, after the date set for the initial delivery thereof to EarthLink for Acceptance ("Acceptance Period") through no fault of EarthLink, and EarthLink in the exercise of its reasonable judgment determines that (a) such failure will have a material adverse impact on the performance of the Critical Deliverable and performance of the Services, or (b) such failure will have a material adverse impact on the value of the Critical Deliverable or Services to EarthLink, EarthLink may declare any such failure to be a sufficient basis for termination of this Agreement or the specific Statement of Work based on performance pursuant to Section 11.2. Such termination shall be effective immediately upon notice to GoAmerica, without the notices and cure periods described in Section 11.2. The parties shall agree upon appropriate Acceptance procedures for non-Critical Deliverable, in the applicable Statements of Work. 2. DEVELOPMENTS 2.1 Existing Materials. The Parties shall retain ownership of their respective inventions, patents, copyrights, trade secrets and other intellectual property rights that were in existence prior to the Effective Date. 2.2 Deliverables. a. Subject to any third party's rights and upon full payment for the Services, Deliverables that are conceived, invented, developed, created or reduced to practice as a part of the performance and delivery of the Services pursuant to this Agreement by (a) GoAmerica, its consultants or the subcontractors engaged by GoAmerica to provide the Services; or (b) by EarthLink or its affiliates and contractors (whether conceived, invented, developed, created or reduced to practice jointly or separately by the persons and entities described in subsections (a) and (b) above), are and will be the sole and exclusive property of EarthLink, unless otherwise - 2 - expressly specified in an applicable Statement of Work. Any Deliverables created by GoAmerica, its consultants or the subcontractors engaged by GoAmerica to provide Services are subject to the "Work for Hire" provisions contained in Sections 101 and 201 of the United States Copyright Law, Title 17 of the United States Code. b. In consideration of EarthLink's payment to GoAmerica of amounts specified in Statements of Work under this Agreement, and to the extent that title to any such Deliverable may not, by operation of law, vest in EarthLink, or such Deliverable may not be considered to be work made for hire, GoAmerica hereby (i) irrevocably transfers and assigns to EarthLink in perpetuity all worldwide right, title and interest in and to the patent rights, copyrights, trade secrets and other proprietary rights (including, without limitation, applications for registration thereof, and all priority rights therein under applicable international conventions for the protection of such rights) in, and ownership of, the Deliverables that GoAmerica may have, as and when such rights arise. GoAmerica shall cooperate fully in (i) vesting in EarthLink the ownership of the proprietary rights to the Deliverables, and (ii) assisting EarthLink in obtaining patent, copyright or any other intellectual property rights in the Deliverables and in maintaining and protecting EarthLink's proprietary rights, including, without limitation, executing any documents which EarthLink reasonably deems necessary for such purpose. c. Notwithstanding the foregoing, the Deliverables may include data, modules, components, designs, utilities, subsets, objects, program listings, tools, models, methodologies, programs, extensions, systems, analysis frameworks, leading or best practices and specifications owned or developed by or licensed to GoAmerica prior to, or independently from, its engagement hereunder ("GoAmerica Technical Elements") and GoAmerica retains all rights thereto. Accordingly, to the extent that any GoAmerica Technical Elements are integrated into any Deliverable, GoAmerica grants to EarthLink, an irrevocable, perpetual, nonexclusive, worldwide, fully paid-up license for the business and operations of EarthLink and its affiliates (i) to use, practice, execute, reproduce, display, perform, operate and distribute the works, inventions, Confidential Information, and other intellectual property owned by and licensed to GoAmerica included as a part of the Deliverables and Services, and (ii) to sublicense third parties to do any of the foregoing for EarthLink and its affiliates. Additionally, GoAmerica shall grant to EarthLink a nonexclusive, worldwide, royalty free, irrevocable, perpetual license to use, execute, reproduce, display, perform, operate and distribute any invention, work, process, method or work product that is not a Deliverable, or a portion thereof, but that was either used by GoAmerica in the performance of the Services or in the preparation of the Deliverables and that is necessary for EarthLink and its affiliates to fully receive, use and derive the full benefit of the Services and the Deliverables provided by GoAmerica hereunder. d. Subject at all times to the restrictions contained herein and excluding any EarthLink Technical Elements (as defined in Section 3.1 below), EarthLink hereby grants to GoAmerica a perpetual, worldwide, nonexclusive, fully paid-up, royalty free license to use, practice, execute, reproduce, display, perform, operate, distribute, modify, develop, personalize and create Derivative Works from the Deliverables for the business and operations of GoAmerica and its affiliates. Except as expressly set forth in Section 3.1 of this Agreement or an applicable Statement of Work, GoAmerica shall not receive any rights, title or interest of any kind in and to any EarthLink Technical Elements. In the event that GoAmerica fails to pay agreed upon license fees or breaches any license rights to the EarthLink Technical Elements - 3 - granted in any Statement of Work, EarthLink may immediately terminate the license to the EarthLink Technical Elements granted to GoAmerica in such Statement of Work and GoAmerica shall immediately cease using, in any manner, the applicable EarthLink Technical Elements. e. Notwithstanding the foregoing, GoAmerica shall retain all intellectual property rights in all ideas, concepts, know-how, and techniques that are inherent in the Deliverables, are not fixed in any tangible medium of expression, and remain as the residuum of experience in the minds of the GoAmerica employees to whom they are exposed. 2.3 Joint Developments. a. Notwithstanding the foregoing, EarthLink and GoAmerica may agree in an applicable Statement of Work to create jointly owned developments. Deliverables shall not be considered joint developments unless the parties expressly agree in writing in an applicable Statement of Work. Deliverables arising out of such joint efforts shall be referred to as "Joint Developments", provided, however, that any EarthLink Technical Elements or GoAmerica Technical Elements incorporated into any Joint Developments shall remain the property of the respective original owner and shall not be subsumed into the Joint Developments without express Documentation to that effect signed by the Party of original ownership. Subject to the immediately preceding sentence, EarthLink and GoAmerica will jointly own an undivided one-half interest in the whole of all intellectual property in the Joint Developments; as to all Joint Developments, the Parties shall meet and discuss matters relating to obtaining legal protection for such Joint Developments. b. If the Parties determine to file for patent protection in any country, such application shall be made on behalf of both Parties and name each Party as joint and equal owner of the Joint Developments and any patent issuing therefrom. All expenses incurred pursuant to the filing, prosecution, issuance and maintenance of such applications shall be borne by the Parties equally. c. With respect to patent applications on the Joint Developments, neither Party shall permit any such application to become abandoned without giving the other Party the opportunity to assume the prosecution of such patent application as soon as possible, which shall not be less than sixty (60) days prior to the date on which it will become abandoned. Each Party agrees to provide the other with timely copies of all official papers and correspondence related to the prosecution of any such jointly owned patent application. d. If, after the Parties meet and discuss matters relating to obtaining legal protection for Joint Developments, either Party does not want to pursue filing a patent application on the Joint Developments in any country, the Party desiring to pursue patent filing (the "Filing Party") may independently pursue patent protection of the Joint Developments in such country on behalf of the Filing Party only, at such Filing Party's sole expense. In any such case, the Party not pursuing the patent filing agrees to execute all such documents as may be necessary or reasonably requested to enable the Filing Party to take such action. The Filing Party shall be the sole owner of any and all resulting patents with respect to such country(ies) and shall be entitled to all revenues derived by the Filing Party relating to the issued patent; provided however, the Filing Party shall in each instance grant, subject to the terms of this - 4 - Agreement, an irrevocable, perpetual, nonexclusive, worldwide, fully paid-up license to use, practice, execute, reproduce, display, perform, operate, distribute, modify, adapt and create Derivative Works from, such patent. 3. LICENSES DURING THE TERM 3.1 Licenses. Notwithstanding the foregoing, the Deliverables may include data, modules, components, designs, utilities, subsets, objects, program listings, tools, models, methodologies, programs, extensions, systems, analysis frameworks, leading or best practices and specifications owned or developed by or licensed to EarthLink prior to, or independently from, GoAmerica's engagement hereunder ("EarthLink Technical Elements") and EarthLink retains all rights thereto. During the term hereof, EarthLink grants to GoAmerica a personal, nonexclusive worldwide nontransferable right and license to use the EarthLink Technical Elements for the sole purpose of performing its Services under this Agreement. 3.2 Restrictions. a. Except in the event of termination of this Agreement due to an uncured material breach by EarthLink, for a period of [**] years after the effective date of termination of this Agreement, GoAmerica shall not directly or indirectly use, distribute, sell, license or otherwise transfer the Deliverables to [**], which are not in substantially the same or a similar business as [**], shall not be considered affiliates or subsidiaries of [**] for purposes of this Section 3.2). b. Except in the event (i) of any termination of this Agreement by EarthLink (provided such termination may not be caused by the termination of any of the Related Agreements by EarthLink for convenience), (ii) termination of any of the Related Agreements by EarthLink due to an uncured material breach of GoAmerica, or (iii) in the event GoAmerica terminates the Sales Agent Agreement for convenience, for a period of [**] years after the effective date of termination of this Agreement, EarthLink shall not directly or indirectly use, distribute, sell, license or otherwise transfer the Deliverables to [**] Neither Party shall, and each Party shall not permit or cause any third party to, alter, modify, reverse engineer, disassemble, decompile or otherwise decode by any method any of the other Party's Technical Elements, if any, in whole or in part for any purpose whatsoever. 4. TRAINING AND SUPPORT 4.1 GoAmerica will be responsible for providing maintenance and will endeavor to correct Errors reported in writing by EarthLink to GoAmerica within a timely fashion relative to the severity of the impact of the Errors reported upon the functionality of the Deliverables as provided in Section 4.2 below. For purposes of this Agreement, "Error" means a programming error, logic error, or "bug" within a Deliverable, or other defect in a Deliverable that causes it to operate incorrectly or otherwise not in conformity with the associated Documentation and the Statement of Work respectively. GoAmerica will be responsible for correcting such Errors by - 5 - issuing either: (a) correction information, such as a correction or corrected Documentation, if the Error is reasonably classified as an Error in the Documentation; (b) Maintenance Modifications, if the Error resides in the operation of the code of the Deliverable itself; or (c) if Maintenance Modifications are to be provided but are not readily available or will not be issued within a timely fashion after receipt of the Error report, a temporary fix or work around, until appropriate Maintenance Modifications can be provided. For purposes of this Agreement, "Maintenance Modification" means a revision or modification to a Deliverable which provides Error correction or which otherwise remedies nonconformity of the Deliverable from its associated Documentation and the Statement of Work, together with the Documentation related thereto. When reporting Errors and requesting Error correction, EarthLink shall specify the severity of impact of the reported Errors upon the functionality of the Deliverable and shall in each such case provide Documentation of a sufficient technical level so that the Error can be reproduced and verified by GoAmerica, and so that GoAmerica can estimate the time and resources required to resolve the Error. If GoAmerica releases to EarthLink a new version of a Deliverable, Maintenance Modification or an enhancement thereto, GoAmerica agrees that such release, Maintenance Modification or enhancement will not (i) require EarthLink to materially alter its operating systems software or hardware platform without prior written approval from EarthLink or (ii) break former versions of client software and/or other dependent systems. 4.2 GoAmerica shall be obligated to perform the maintenance and Error correction functions for a period of [**] days from the date of Acceptance [**] to **] EarthLink. Thereafter, GoAmerica agrees to provide support and maintenance and Error correction as requested by EarthLink at the rates set forth on Exhibit D. 4.3 At a mutually agreed upon time and location, GoAmerica shall provide EarthLink's staff with one technical training session no more often than every six (6) months with respect to a particular Statement of Work with respect to the Deliverables at no charge other than EarthLink's payment of or reimbursement for all reasonable travel and out-of-pocket expenses incurred by GoAmerica's staff in connection with the provision of such session. Thereafter, from time to time during the Term, at EarthLink's request, GoAmerica shall provide additional technical training with respect to the Deliverables at the fees identified in the relevant Statement of Work. 4.4 Correction of errors shall be furnished by GoAmerica in the form and media reasonably selected by EarthLink including corrections in the form of Documentation and/or such correction as shall remedy such errors so that the Deliverable is functional substantially in accordance with its Specifications. 5. ESCROW a. EarthLink is hereby granted a present right of access to and possession of the Source Code for the GoAmerica Technical Elements subject to and under the terms and conditions set forth in this Section 5. On the Effective Date, GoAmerica will enter into an escrow agreement with DSI Technology Escrow Services (the "Escrow Agreement") in the form attached hereto as Exhibit B. The terms and conditions of such escrow agreement shall be consistent with the terms and conditions of this Agreement. Within one (1) business day following the Effective Date, GoAmerica shall deposit the Escrow Materials (as defined below) - 6 - with the escrow agent. Upon subsequent Acceptance of the Deliverables to EarthLink, in each instance, GoAmerica will immediately deposit with such escrow agent, the Escrow Materials. The parties shall share the escrow costs equally. For purposes herein, the "Escrow Materials" mean the entire computer source code, in human readable format, corresponding to the Deliverables (including any GoAmerica Technical Elements incorporated therein), including all updates and enhancements thereto, Documentation and all instructions sufficient to allow a skilled programmer to modify, maintain and compile the Source Code in order to allow EarthLink to use the Escrow Material for its use and enjoyment of the Deliverables. EarthLink shall be a beneficiary under the escrow agreement. In the event of any Release Conditions set forth in the Escrow Agreement, the Escrow Materials shall be released to EarthLink in accordance with the terms of the Escrow Agreement and any Source Code to the Deliverables or GoAmerica Technical Elements not in escrow shall be immediately delivered to EarthLink by GoAmerica. b. In addition to its other license rights hereunder, EarthLink also has a present irrevocable, perpetual, nonexclusive, worldwide, fully paid-up license to practice, operate, use, modify and create Derivative Works (as defined below) from the Source Code to the GoAmerica Technical Elements, which license may be enjoyed solely upon the occurrence of a Release Condition (as defined in the Escrow Agreement), for the sole purpose of creating, developing and maintaining the Deliverables (whether delivered by GoAmerica or not) and supporting its use of the Deliverables solely for and in the operations of EarthLink and for use by EarthLink's end users, in accordance with this Agreement; provided however, EarthLink may not use the Source Code to the GoAmerica Technical Elements for purposes of creating or offering (i) server software products that need to be installed at a customer's location, or (ii) hosted services that provide encryption, corporate email or documentation services for handheld wireless devices. "Derivative Work" has the meaning ascribed to it under the United States Copyright Law, Title 17 U.S.C. Sec. 101 et. seq., as the same may be amended from time to time. In the event of a Release Condition the escrow agent shall deliver the Escrow Materials to EarthLink upon notification by EarthLink of a Release Condition and escrow agent's confirmation thereof with GoAmerica. In addition, for the purpose of exercising the rights granted to EarthLink in this Agreement, and subject to the limitations and restrictions set forth herein EarthLink shall have the right to (i) authorize its affiliates or (ii) retain third parties to perform any service, function, responsibility or task necessary for EarthLink or the EarthLink end users to have the benefit of the Deliverables in accordance with the terms of this Agreement. c. EarthLink agrees to restrict access to the Source Code to the GoAmerica Technical Elements to those employees of EarthLink, its affiliates and third parties acting on their behalf who are directly involved, subject to the restrictions set forth herein, with development, maintenance, operation or support of the Source Code for the GoAmerica Technical Elements and who are legally bound to maintain the proprietary and confidential nature of such materials under a written agreement. 6. PAYMENT 6.1 Fees and Expenses. EarthLink shall pre-pay a payment of [**] Dollars ($[**]) (the "First Payment") to GoAmerica, on the date that GoAmerica delivers the Escrow Materials to the escrow agent in accordance with the Escrow Agreement, in consideration of the work to be - 7 - performed by GoAmerica pursuant to applicable Statements of Work. Upon the completion of the Services or Deliverable to be performed in consideration for the First Payment, EarthLink agrees to purchase at least [**] Dollars ($[**]) of additional Services from GoAmerica payable upon Acceptance of the Deliverables or completion of Services in accordance with the applicable Statements of Work. Thereafter, EarthLink shall pay GoAmerica on a monthly basis, any other amounts due pursuant to the applicable Statement(s) of Work. 6.2 Payment. a. EarthLink shall pay the Fees as described in each Statement of Work. b. Following GoAmerica's provision of all of the Services related to the prepayment described in Section 6.1, GoAmerica shall have the right to increase reasonably the fees specified in any Statement of Work at any time during the Term upon [**] days prior written notice to EarthLink if any Statement of Work extends substantially beyond the originally scheduled end date other than due to GoAmerica's failure to perform diligently. c. Except as otherwise provided herein, EarthLink shall pay to GoAmerica fees for any services ordered by EarthLink at the then-current rates. EarthLink shall also reimburse GoAmerica for reasonable out-of-pocket expenses incurred by GoAmerica in connection with providing such services provided such expenses have been pre-approved by EarthLink in writing. Except as provided otherwise in this Agreement, each party shall bear its own expenses and costs of performing under this Agreement. d. Amounts to be paid by EarthLink to GoAmerica shall be payable on the date or event specified in this Agreement or any Statement of Work, or if not specified, [**] days after date of invoice from GoAmerica. e. The fees listed in this Agreement do not include taxes. GoAmerica is responsible to any pay sales, use, property, value-added, or other federal, state or local taxes based on the licenses granted under this Agreement. EarthLink is responsible to pay sales, use, property, value-added or other federal, state or local taxes on the sublicenses permitted to be granted by EarthLink hereunder. This section shall not apply to taxes based on either Party's income. 6.3 Right to Offset. Either party (the "Offsetting Party") shall have the right to set off against payment due to the other party hereunder any amounts that the other party then owes to the Offsetting Party, including, without limitation, any amounts subject to an indemnifiable claim, whether arising out of this Agreement or any of the Related Agreements. Prior to exercising this right, the Offsetting Party, through a vice president or higher officer, shall first attempt, in good faith, to resolve the matter giving rise to setoff to the satisfaction of both parties with a vice president or higher officer of the other party, but is not obligated to do so for more than [**] business days after the offsetting Party notifies the other Party of its offset right. 7. THIRD PARTY MATERIALS/MARKS a. Neither Party shall incorporate any third party products, materials, or intellectual property into the Deliverables without first obtaining the other Party's prior written - 8 - consent. If any such third party products, materials, or intellectual property are incorporated into the Deliverables, the responsible Party shall procure a license and the legal right to such third party products, materials, or intellectual property, as set forth in this Agreement. b. All GoAmerica Technical Elements and EarthLink Technical Elements incorporated into Deliverables shall be marked with GoAmerica's and EarthLink's respective copyright, trademark and confidentiality notice(s) as originally included therein, and any such additional other notices, proprietary legends or restrictions as GoAmerica or EarthLink may require. GoAmerica acknowledges EarthLink's full and exclusive ownership, right, title and interest in and to, EarthLink's trademarks, and GoAmerica agrees that it will not do anything inconsistent with such ownership. EarthLink acknowledges GoAmerica's full and exclusive ownership, right, title and interest in and to, GoAmerica's trademarks, and EarthLink agrees that it will not do anything inconsistent with such ownership. c. EarthLink will prepare its own sales materials. Except as allowed hereunder, the use of each Party's marks is subject to prior review and written approval by the owner of such marks. 8. CONFIDENTIALITY 8.1 Definition. The term "Confidential Information" shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed, or information designated as confidential at the time of disclosure, or summarized in writing as confidential promptly after disclosure or made available by either Party (the "disclosing Party") to the other (the "receiving Party") in connection with the efforts contemplated hereunder and which may reasonably be understood as confidential, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements. 8.2 Confidential Information. The receiving Party shall disclose the Disclosing Party's Confidential Information only to persons within the receiving Party (including its attorneys and auditors) having the need to know the Confidential Information for the purposes of this Agreement. The receiving Party shall treat Confidential Information as it does its own proprietary and confidential information of a similar nature, and, in any event, with not less than reasonable care. Upon the disclosing Party's written request, the receiving Party shall return or certify the destruction of all Confidential Information, and shall continue for three (3) years from the date of return or destruction of such information to hold such Confidential Information secret, provided that Confidential Information related to trade secrets shall remain confidential indefinitely. 8.3 Exceptions. The obligations of either Party under this Section 8 will not apply to information that the receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no - 9 - breach of this Agreement or other wrongful act by the receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of this Agreement or other wrongful act by the receiving Party, (iv) is independently developed by the receiving Party without any reference to the Confidential Information of the Disclosing Party, or (v) is required to be disclosed by order of a court of competent jurisdiction or regulatory authority, provided that the receiving Party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing Party, at the disclosing Party's cost and expense, in any effort made by the disclosing Party to seek a protective order or other appropriate protection of its Confidential Information. 8.4 Injunctive Relief. Failure on the part of receiving Party to abide by this Section 8 shall cause disclosing Party irreparable harm for which damages, although available, will not be an adequate remedy at law. Accordingly, disclosing Party has the right to seek an injunction to prevent any further violations of this Section 8 and recover court costs and reasonable attorney fees incurred in its enforcement of this Section 8. 9. REPRESENTATIONS AND WARRANTIES 9.1 Warranties For The Services. GoAmerica makes the following representations, warranties and covenants to EarthLink regarding the Services: a. Performance. GoAmerica shall perform Services in accordance with this Agreement and applicable Statement of Work in a timely and good and workmanlike manner using a level of care and skill that is consistent with customary industry standards. b. Non-Infringement. GoAmerica's performance of Services hereunder, nor any Deliverables, GoAmerica Technical Elements or third party materials provided by GoAmerica, nor either Party's authorized use thereof, shall violate or infringe upon any third party's intellectual property. c. Defects. For a period of ninety (90) days after the earlier of (i) delivery by GoAmerica or (ii) acceptance by EarthLink pursuant to Section 1.2 above, the Deliverables shall be free from defects in design, material and workmanship and from programming and other errors and shall substantially conform to the Specifications. GoAmerica shall repair the Deliverables in accordance with the Error Correction procedures set forth in Exhibit D. 10. INDEMNIFICATION 10.1 Non Infringement. Each Party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other Party (the "Indemnified Party") and its officers, directors, employees, affiliates and agents from and against all liability, damages, loss, costs and expenses (including but not limited to reasonable attorneys' fees and expenses) arising out of or in connection with any act or omission of the Indemnifying Party as to any claim, suit, action or proceeding based upon or arising out of the alleged or actual infringement or misappropriation of the EarthLink Technical Elements or GoAmerica Technical Elements, Deliverables, or any other intellectual property provided by such Party hereunder; provided the Indemnifying Party shall not be liable under this provision to the extent such claim of infringement or misappropriation was caused by the unauthorized use of the Indemnifying Party's intellectual property and would - 10 - not have occurred without such unauthorized use. Each Indemnifying Party shall further indemnify, defend and hold harmless the Indemnified Party and its officers, directors, employees and agents from and against all liability, damages, loss, costs and expenses (including but not limited to reasonable attorneys' fees and expenses) arising out of or in connection with any claim, suit, action or proceeding based upon or arising out of the alleged or actual infringement or misappropriation with respect to its contribution to the Deliverables. 10.2 Procedures. The Indemnified Party shall (i) notify the Indemnifying Party of any matters in respect of which the indemnity may apply and of which the Indemnified Party has knowledge; (ii) give the Indemnifying Party full opportunity to control the response thereto and the defense thereof, including any agreement relating to the settlement thereof, provided that the Indemnified Party shall not settle any such claim or action without the prior written consent of the Indemnified Party; and (iii) reasonably cooperate with the Indemnified Party, at its cost and expense in the defense or settlement thereof. The Indemnified Party may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice. 11. TERM AND TERMINATION 11.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect unless earlier terminated as described herein. Upon termination of this Agreement, GoAmerica shall immediately deliver to EarthLink any Deliverables, whether complete or not, and any related Documentation and EarthLink shall immediately remit payment for any fees owed to GoAmerica. Upon any termination of any Statement of Work GoAmerica shall immediately deliver to EarthLink any Deliverables covered by such Statement of Work, whether complete or not, and any related Documentation and EarthLink shall immediately remit payment for any fees owed to GoAmerica under such Statement of Work. 11.2 Termination. Either Party shall have the right to terminate this Agreement, immediately in the event of (i) a material breach or default of any provision of this Agreement or any Statement of Work that provides for Critical Deliverables and the failure by the breaching Party to cure such breach within ten (10) days, or such other mutually agreed upon period, of receipt of written notice of same from the aggrieved Party; (ii) a Party files in any court pursuant to any statute, a petition in bankruptcy or insolvency and such petition is not dismissed within thirty (30) days after the filing thereof, or for reorganization in bankruptcy or for an arrangement for the appointment of a receiver or trustee of that Party or of its assets; (iii) a Party is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition is not dismissed within thirty (30) days after the filing thereof; (iv) a Party proposes to be a Party to any dissolution; or (v) a Party makes an assignment for the benefit of creditors. In the event of an uncured material breach related to a Non-Critical Deliverable or payments related thereto and the failure by the breaching Party to cure such breach within thirty (30) days of receipt of written notice of same from the aggrieved Party, the non-breaching Party may terminate the applicable Statement of Work only. In addition, EarthLink shall have the right to terminate this Agreement (i) without cause for convenience upon one hundred eighty (180) days written notice and (ii) immediately upon written notice upon the termination of any of the Related Agreements. This Agreement shall terminate automatically and immediately upon (i) the termination of the Acquisition Agreement or (ii) the occurrence of a Release Condition. - 11 - 11.3 Effects of Expiration or Termination. Upon the termination of this Agreement, all rights and obligations of the parties under this Agreement shall terminate, except the rights and obligations under Sections 2, 3, 5, 6, 8, 10, 11.3 and 12 herein shall survive expiration or termination of the Agreement. Upon the termination of this Agreement, EarthLink shall pay any outstanding amounts owed to GoAmerica, subject to any offset as applicable, and GoAmerica shall (i) deliver all Deliverables to EarthLink, whether completed or not and (ii) refund any amounts that were prepaid by EarthLink but not earned by GoAmerica hereunder. The termination of this Agreement by EarthLink without cause for convenience shall not give EarthLink the right to terminate the other Related Agreements or give rise to a Release Condition. The Parties agree that any termination of this Agreement due to (i) an uncured material breach of this Agreement or (ii) the termination of a Related Agreement due to an uncured material breach of such Related Agreement, shall be treated as a failure of GoAmerica's obligations under this Agreement for purposes of the Escrow Agreement. 12. GENERAL PROVISIONS 12.1 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement or any applicable Statement of Work because of any event beyond the control of such Party including, but not limited to, natural disaster, acts of God, wars or acts of terrorism, actions or decrees of governmental bodies or failure of communications lines or networks (a "Force Majeure Event"), the Party who cannot perform its obligations shall promptly give written notice to the other Party and shall use its best commercially reasonable efforts to resume performance. Upon receipt of such notice, all obligations under this Agreement and any applicable Statement of Work shall be immediately suspended for the duration of such Force Majeure Event. 12.2 Notices. All notices or other communications hereunder shall be in writing and shall be delivered by hand, facsimile or sent, postage prepaid, by registered or certified mail or reputable overnight courier service and shall be deemed given when so delivered by hand or facsimile, or, if mailed, five days after mailing (one business day in the case of overnight courier) addressed to the intended recipient as set forth below: If to GoAmerica: Aaron Dobrinsky Chairman and CEO GoAmerica, Inc. 433 Hackensack Avenue Hackensack, NJ 07601 Fax: 201-527-1772 with a copy to: GoAmerica, Inc. ATTN: General Counsel 433 Hackensack Avenue Hackensack, NJ 07601 Fax: 201-527-1081 - 12 - If to EarthLink: Brent Cobb Vice President EarthLink, Inc. 1375 Peachtree Street Atlanta, GA 30309 Fax: 404-287-4905 with copies to: EarthLink, Inc. 1375 Peachtree Street Atlanta, GA 30309 Attn: Legal Department Fax: 404-287-4905 Hunton & Williams 600 Peachtree Street, NE Suite 4100 Atlanta, GA 30308 Attn: W. Tinley Anderson, III Fax: 404-888-4190 12.3 Waiver. The waiver by any party of any of its rights or breaches of the other party under this Agreement in a particular instance shall not be construed as a waiver of the same or different rights or breaches in subsequent instances. All remedies, rights, undertakings and obligations hereunder shall be cumulative and none shall operate as a limitation of any other remedy, right, undertaking or obligation thereof. No failure or delay by any party in exercising any right, power or privilege hereunder (and no course of dealing between or among any of the parties) shall operate as a waiver of any such right, power or privilege. 12.4 Severability of Provisions. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. 12.5 Governing Law and Forum. The laws of Delaware shall govern this Agreement without giving effect to applicable conflict of laws provisions. The federal and state courts located in Atlanta, Georgia alone have jurisdiction over all disputes brought by GoAmerica arising out of or related to this Agreement. GoAmerica consents to the personal jurisdiction of such courts sitting in Georgia with respect to such matters, and waives GoAmerica's rights to removal or consent to removal. The federal and state courts located in Newark, New Jersey alone have jurisdiction over all disputes brought by EarthLink arising out of or related to this Agreement. EarthLink consents to the personal jurisdiction of such courts sitting in New Jersey with respect to such matters, and waives EarthLink's rights to removal or consent to removal. In the event any litigation or other proceeding is brought by either party in connection with this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to recover from the other party all costs, reasonable attorneys' fees and other reasonable expenses incurred by such prevailing party in such litigation. - 13 - 12.6 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of GoAmerica and EarthLink and each of their respective heirs, representatives, successors, and permitted assigns, in accordance with the terms hereof. This Agreement shall not be assignable by GoAmerica without the prior written consent of EarthLink. This Agreement shall be assignable by EarthLink to any of its affiliates without the prior written consent of GoAmerica. 12.7 Entire Agreement. This Agreement, the Exhibits, any Statement of Works attached hereto and each of the other Related Agreements, constitute the entire understanding and agreement with respect to the subject matter hereof and thereof, and supersede any and all prior understandings and agreements, whether oral or written, between the parties relating to the subject matter hereof and thereof, all of which are merged in this Agreement and the other Related Agreements. The Agreement shall not be revised, amended, or in any way modified except in writing executed by both parties. 12.8 Bankruptcy. All rights and licenses granted hereunder or pursuant hereto are, and shall be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses to rights of "intellectual property," as defined thereunder. Notwithstanding any provision contained herein to the contrary, if the licensor of such rights is under any proceeding under the United States Bankruptcy Code and the trustee in bankruptcy of such party, or such party, as a debtor in possession, rightfully elects to reject this Agreement, the licensed party may, pursuant to Sections 365(n)(1) and 365(n)(2) of the United States Bankruptcy Code, retain any and all of the rights licensed to it hereunder, to the maximum extent permitted by law. 12.9 Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party. 12.10 Headings. Section headings contained in this Agreement and any attachments are inserted for convenience or reference only, shall not be deemed to be a part of this Agreement or any Statement of Work for any other purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions herein. 12.11 Counterparts. This Agreement and any attachment may be executed in two counterparts, each of which shall be deemed to be an original, and both of which, when taken together, shall constitute one and the same instrument. 12.12 Independent Contractors. The relationship of the Parties hereunder shall be that of independent contractors. Nothing herein shall be construed to constitute a partnership between or joint venture of the Parties, nor shall either Party be deemed the agent of the other or have the right to bind the other in any way without the prior written consent of the other. 12.13 Construction. The Parties have jointly participated in the negotiating and drafting of this Agreement. In the event of an ambiguity or question of intent or interpretation with respect to any provision hereof, this Agreement (and any applicable or relevant provision(s)) shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any one Party by virtue of the authorship of any of the provisions of this Agreement. - 14 - 12.14 Marks. Neither party shall use the other Party's trademarks, trade names, or trade dress (including in advertising) other than for purposes specifically authorized in writing by the other Party. Neither Party will represent directly or indirectly that any of their products, services or organizations are products, services, or organizations of the other Party or any of the other Party's affiliates, nor that any of their services are made in accordance with or utilize any information of the other Party or any of its affiliates. Neither Party shall claim any ownership interest or any other rights in any of the other Party's marks or logos and all benefits of use shall be for the benefit of the Party owning such marks or logos. Upon termination of this Agreement, any and all rights or privileges granted by one Party to the other Party to use any of its marks or logos shall immediately expire, and each Party shall immediately discontinue the use of the other Party's marks and logos except as may otherwise be agreed. 12.15 Publicity. Neither party may issue a press release of any kind regarding the Parties relationship established hereunder with out the prior written approval of the other party. Notwithstanding the foregoing, each Party agrees to work with the other Party to prepare press releases to ensure that each Party is able meet any reporting requirements required by law. IN WITNESS WHEREOF, authorized officers of the Parties hereto have executed this Agreement as of the Effective Date. EarthLink, Inc. By: /s/Brent Cobb ------------------------------------ Brent Cobb, Vice President GoAmerica, Inc. By: /s/Aaron Dobrinsky ------------------------------------- Name: Aaron Dobrinsky ----------------------------------- Title: CEO ---------------------------------- GoAmerica Communications Corporation By: /s/Aaron Dobrinsky ------------------------------------- Name: Aaron Dobrinsky ---------------------------------- Title: CEO ---------------------------------- - 15 - EXECUTION COPY Exhibit A Form Statement of Work STATEMENT OF WORK NO. ___TO THE TECHNOLOGY DEVELOPMENT AGREEMENT ------------------------------------------------------------------ This Statement of Work ___, dated as of __________ __, 2002 ("Statement of Work"), is issued pursuant to, and incorporates herein by reference, the Technology Development Agreement, dated as of September 25, 2002 ("Agreement"), by and between EarthLink and GoAmerica. Any term not otherwise defined herein shall have the meaning ascribed to it in the Agreement. Deliverables: Critical/Non-Critical: The Deliverables provided under this Statement of Work shall be considered [Critical/Non-Critical] under the Agreement. GoAmerica Technical Elements: EarthLink Technical Elements: Subject at all times to the restrictions contained herein and in the Agreement, EarthLink hereby grants to GoAmerica a perpetual, worldwide, nonexclusive, fully paid-up, royalty free license to use, modify, and create derivative works from the following EarthLink Technical Elements solely as necessary for GoAmerica to support the Deliverables licensed to GoAmerica under the Agreement: [List the EarthLink Technical Elements for which GoAmerica is receiving a license.] GoAmerica shall not receive any rights to the following EarthLink Technical Elements: [List the EarthLink Technical Elements for which GoAmerica is not receiving license rights.] Description of Services: Delivery Schedule: Acceptance Procedures for Non-Critical Deliverables: Commencement Date: B-1 Anticipated Completion Date for Deliverables: Fees: Third Party Materials To Be Incorporated Into the Deliverables: Specifications: EARTHLINK, INC. GOAMERICA, INC. By: By: ------------------------------ --------------------------------- Name: Brent Cobb Name: ---------------------------------- Title: Vice President Title: ----------------------------- Date:_____________________________ Date:_____________________________ - 2 - Exhibit B Escrow Agreement [Filed as Exhibit C to Exhibit 10.4] - 3 - Exhibit C Definitions Documentation. "Documentation" means the functional and design specifications, the programmer and user manuals, programmer and user guides, instructions and other such programmer and end user operating Documentation (including on-line help files), each for a specified software program and in electronic/diskette and human readable/hard copy formats. Enhancement. "Enhancement" to any GoAmerica Technical Element means a revision or modification thereto which is intended to improve such GoAmerica Technical Element's efficiency or to incorporate significant additional or alternative functionality. Enhancements are evidenced by a version number (e.g. "X.O") versus a point release (e.g. "O.X") in accordance with industry practices. Enhancement Release. "Enhancement Release" means, with respect to any GoAmerica Technical Elements, a new version or release thereof in object code and Source Code versions which incorporates Enhancements not found in such GoAmerica Technical Elements' then-current version, together with any Maintenance Modifications associated therewith, with the Documentation related thereto (all in electronic/diskette and human readable/hard copy formats). Error. "Error" means a programming error, logic error or "bug" within a Deliverable, GoAmerica Technical Element or Enhancement Release, or other defect in a Deliverable or GoAmerica Technical Element or Enhancement Release that causes it to operate incorrectly or otherwise not in conformity with the associated Documentation. Error Correction. "Error Correction" with respect to a Deliverable, GoAmerica Technical Element or Enhancement Release means that it is made to conform to its Documentation, respectively, and that any reported Error is properly remedied. Maintenance Services. "Maintenance Services" means those support and maintenance services described in Exhibit D. Maintenance Modification. "Maintenance Modification" to an Enhancement Release means a revision or modification thereto which provides Error Correction or which otherwise remedies nonconformities of the Enhancement Releases from its associated Documentation, together with the Documentation related thereto. Source Code. "Source Code" means the representation of a Deliverable (including, without limitation, any GoAmerica Technical Elements actually or contemplated to be incorporated therein or otherwise necessary for the creation or full use of the Deliverable) and an Enhancement Release in the form amenable to human understanding, as written in a higher level computer programming language, together with all comments included therein and other programmer documentation (including and such as flow charts, pseudocode or logic diagrams) therefor. - 4 - Updates. "Updates" means all general release bug fixes, updates, Maintenance Modifications, Enhancements and upgrades to the GoAmerica Technical Elements and Documentation however described or denominated, including compliance updates. - 5 - EXECUTION COPY Exhibit D Description of Maintenance Services A. Software Maintenance, Severity and Error Correction. GoAmerica shall provide support and maintenance and correct Errors reported in writing by EarthLink within the Correction Period applicable to each severity level set forth below. GoAmerica shall be responsible for correcting such Errors by issuing either: (a) correction information, such as correction or corrected Documentation, if the Error is reasonably classified as an Error in the Documentation; (b) Maintenance Modifications, if the Error resides in the operation of the code of the Enhancement Release itself; or (c) if Maintenance Modifications are to be provided but are not readily available or will not be issued within ten (10) business days after receipt of the Error report, a temporary fix or work around, until appropriate Maintenance Modifications can be provided. GoAmerica shall prioritize its overall efforts according to the severity level of the Error stipulated by EarthLink. When reporting Errors and requesting Error Correction under this Section, EarthLink shall stipulate the severity level it has associated with the Error, using the following severity level guidelines, and shall in such case provide Documentation of a sufficient technical level so that the Error can be reproduced and verified by GoAmerica, and so that GoAmerica can estimate the time and resources required to resolve the Error. The response periods set forth in Severity Levels A through D below shall not be deemed to commence until GoAmerica is in receipt of the report of the Error from EarthLink and EarthLink demonstrates that the Error can be replicated by GoAmerica. The severity levels are: Severity Level A: Critical. The Error prevents or seriously impairs the performance of substantially all major functions of a Deliverable, GoAmerica Technical Element or Enhancement Release. "Correction Period" means a response to EarthLink acknowledging the Error and reporting the projected time of Error Correction within one (1) business day of receipt of the report from EarthLink and provide Error Correction within six (6) business days. Severity Level B: Severe Impact. The Error prevents or seriously impairs the performance of a major function of a Deliverable, GoAmerica Technical Element or Enhancement Release. "Correction Period" means a response to EarthLink acknowledging the Error and reporting the projected time of Error Correction within two (2) business days of receipt of the report from EarthLink and provide Error Correction within seven (7) business days. Severity Level C: Degraded Operation. The Error impairs the performance of a minor function of a Deliverable, GoAmerica Technical Element or Enhancement Release. "Correction Period" means a response to EarthLink acknowledging its Error and reporting the projected time of Error Correction within five (5) business days of receipt of the report from EarthLink and provide Error Correction within ten (10) business days. Severity Level D: Minor Impact. The Error is a minor problem such as a problem in a rarely used function, or a problem with an easy and effective workaround, or a cosmetic problem. "Correction Period" means a response to EarthLink acknowledging the Error and reporting the projected time of Error Correction within ten (10) business days of receipt of B-1 the report from EarthLink and provide a work around within thirty (30) business days and Error Correction in the next scheduled release. B. Response Exceptions. In the event that any performance obligation of GoAmerica of an Enhancement Release set forth above is dependent upon an action, consent or approval of EarthLink and the performance of such obligation is delayed by such dependency, GoAmerica shall use and exert its commercially reasonable best efforts to remove such dependency or overcome such delay in order to meet such performance obligation within the time frames provided but in any event as soon as practical after such dependency is removed or delay is overcome. GoAmerica shall not be held liable under this Agreement or be considered in default under this Agreement for failure to comply with its performance obligations hereof if the condition described above occurs and GoAmerica complies with its obligations hereof. C. Maintenance Fees. GoAmerica shall provide the Maintenance Services described herein free of charge for the first one (1) year period following the Effective Date. For the first year thereafter, GoAmerica shall provide the Maintenance Services in exchange for an annual maintenance fee of [**] Dollars ($[**]) (the "Maintenance Fee") Thereafter, the Parties shall mutually agree upon the annual Maintenance Fees provider however, annual Maintenance Fees described herein may increase by no more than [**] Percent ([**]%) annually. D. Service Level Agreements. GoAmerica agrees to provide its products and services in accordance with mutually agreed upon Service Level Agreements which shall be attached hereto as Schedule I to Exhibit D. E. As part of the Maintenance Services, GoAmerica shall provide to EarthLink, at a minimum, annual Updates to the Deliverables and GoAmerica Technical Elements, Error Corrections, Maintenance Modifications, improvements to existing features and the like. Updates shall include appropriate changes to the Documentation for the Deliverables and GoAmerica Technical Elements. Updates shall be governed by the licenses granted in this Agreement. As part of the Maintenance Fee, GoAmerica will provide to Earthlink all Updates at no additional charge. GoAmerica agrees that all Updates, specifically general release bug fixes, updates, Maintenance Modifications, Enhancements and upgrades to the Deliverables and GoAmerica Technical Elements, are included in the annual Maintenance Fee at no additional cost to Earthlink. F. At a mutually agreed upon time and location, GoAmerica shall provide Earthlink's staff with one technical training session no more often than every six (6) months with respect to the Licensed Software at no charge other than Earthlink's payment of or reimbursement for all reasonable travel and out-of-pocket expenses incurred by GoAmerica's staff in connection with the provision of such session. Thereafter, from time to time during the Term, at Earthlink's request, GoAmerica shall provide additional technical training with respect to the Deliverables and GoAmerica Technical Elements as mutually agreed upon by the Parties. EarthLink shall pay GoAmerica [**] Dollars ($[**]) per day for any additional training requested by EarthLink. G. Earthlink will provide certain support directly to end users that use the Deliverables and GoAmerica Technical Elements.. Earthlink will instruct End Users to contact Earthlink for all - 2 - support matters. Earthlink will perform problem determination procedures, report the problem to GoAmerica and be responsible for providing remedies to end users. GoAmerica shall have no obligation to provide support directly to Earthlink's end users that utilize the Deliverables and GoAmerica Technical Elements. H. In performing the Maintenance Services, GoAmerica will assign personnel with the required skills, training and experience to perform the duties, responsibilities and functions assigned to such personnel. I. Correction of Errors shall be furnished by GoAmerica in the form and media reasonably selected by Earthlink including corrections in the form of Documentation and/or such correction as shall remedy such errors so that the Deliverables and GoAmerica Technical Elements are functional substantially in accordance with its Documentation. - 3 - EX-10 6 ex10-4.txt EXECUTION COPY Exhibit 10.4 Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions. LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of the 25th day of September, 2002 (the "Effective Date") by and between EarthLink, Inc., a Delaware corporation ("EarthLink"), GoAmerica, Inc., a Delaware corporation ("Parent"), and GoAmerica Communications Corporation, a Delaware corporation and wholly-owned subsidiary of Parent ("Sub" and together with Parent, "GoAmerica"). EarthLink and GoAmerica may be referred to herein as "Party" and together, the "Parties"). RECITALS In connection with this Agreement and as elements of an overall strategic relationship, the parties and GoAmerica's wholly-owned subsidiary GoAmerica Communications Corp. will simultaneously enter into (i) a bilateral Sales Agent Agreement, pursuant to which each party will serve as a sales agent for certain of the products and services of the other party, (ii) an Acquisition Agreement, pursuant to which EarthLink will purchase certain of GoAmerica's assets, (iii) a Technology Development Agreement, pursuant to which the GoAmerica will develop certain software and other technologies for EarthLink, and (iv) an Escrow Agreement, which defines EarthLink's rights to access the source code for certain of the licensed software. This Agreement, together with the Sales Agent Agreement, the Acquisition Agreement, the Technology Development Agreement and the Escrow Agreement are referred to collectively as the "Related Agreements." The Parties agree that the Related Agreements collectively represent an integrated transaction and that none of the Related Agreements would have been executed but for the execution of the others. Thus, the Parties agree that the consideration provided for each of the Related Agreements is consideration provided in exchange for the Parties' duties and obligations under all of the Related Agreements and that such consideration is full and fair consideration for each of the Parties' duties and obligations under all of the Related Agreements. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein and in the Related Agreements and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Definitions. Capitalized terms used in this Agreement and not otherwise defined have the meanings ascribed to those terms in Exhibit A. 2. License Grant. GoAmerica hereby grants to EarthLink a perpetual, nontransferable (except as agreed herein), nonexclusive, worldwide, fully paid-up (subject to the recurring maintenance fees set forth in the Sales Agent Agreement), right and license to access, use, install and sublicense the Licensed Software for the purpose of loading, downloading and installing the Licensed Software onto EarthLink servers for the provision of services to EarthLink's end users and the end users of EarthLink's sublicensees and for development and testing purposes; 1 provided however, except in the event of a Release Condition (as defined in the Escrow Agreement), EarthLink's license to the Server Software shall be limited to a right to use, access and allow its end user to use and access such Server Software via the client software portion of the Licensed Software. EarthLink shall have a right to make back-up copies of the Licensed Software for archival, development, and testing purposes. Any sublicense of the Licensed Software shall be subject to the terms and conditions, including pricing, of a mutually agree upon end user agreement (the "End User Agreement"). The End User Agreement shall include, without limitation, the service fees set forth on Exhibit E. The parties agree to negotiate and agree upon an End User Agreement within seven (7) business days following the Effective Date of this Agreement. In the event that the parties are unable to agree upon the End User Agreement within such seven (7) business day period, this Agreement may be terminated by either party immediately upon written notice to the other party. 3. No Other Rights. Nothing in this Agreement shall be construed as granting EarthLink any rights of any kind with respect to any portion of the Licensed Software except as expressly and unambiguously set forth in this Agreement. All right, title and interest in and to, and ownership of, the Licensed Software and any modifications thereto shall remain at all times exclusively with GoAmerica. EarthLink must reproduce and include any copyright and trademark notices, legends and logos on each copy of the Licensed Software or diskettes made by EarthLink. GoAmerica shall be responsible to procure and provide to EarthLink all necessary licenses for Third Party Software (including computer software and the required maintenance and enhancement updates and releases thereto), except for those specifically requested by EarthLink, necessary for the use and full exercise of the rights and the licenses granted herein by GoAmerica to EarthLink and to cause the Licensed Software to operate and perform functions in accordance with and pursuant to the Licensed Software's Documentation and this Agreement. 4. Payments. 4.1 Service Fees. EarthLink agrees to pay GoAmerica the monthly Service Fees set forth on Exhibit E. 4.2 Right to Offset. Either party (the "Offsetting Party") shall have the right to set off against payment due to the other party hereunder any amounts that the other party then owes to the Offsetting Party, including, without limitation, any amounts subject to an indemnifiable claim, whether arising out of this Agreement or any of the Related Agreements. Prior to exercising this right, the Offsetting Party, through a vice president or higher officer, shall first attempt, in good faith, to resolve the matter giving rise to setoff to the satisfaction of both parties with a vice president or higher officer of the other party, but is not obligated to do so for more than [**] business days after the offsetting Party notifies the other Party of its offset right. 5. Maintenance and Support. GoAmerica agrees to provide the maintenance and support services described in Exhibit D. 6. Delivery of Licensed Software. 6.1 EarthLink will have all of its end-users accept the terms of the End User Agreement. 2 6.2 If EarthLink is granting end user licenses on a pass-through basis, GoAmerica and EarthLink shall mutually agree upon the terms regarding delivery of the Licensed Software. 6.3 Within one (1) business day following the Effective Date, GoAmerica shall deliver the Licensed Software (except for the Server Software which shall be maintained on GoAmerica's servers), including Documentation, to EarthLink in accordance with Exhibit B. During the term of this Agreement, GoAmerica shall provide, [**], to EarthLink all available Enhancement Releases as soon as they become available. From time to time GoAmerica may make generally available to its other Licensed Software licensees, at additional license fees, add-on modules or features, which have been interfaced or integrated with the Licensed Software. Add-on modules are GoAmerica product offerings that are not included in the Licensed Software existing on the date of this Agreement or the Enhancement Releases and which are not otherwise provided to EarthLink under an express provision of Exhibit B. These add-on modules will be made available to EarthLink for EarthLink evaluation and relicense to end users at additional license fees. 6.4 EarthLink will prepare its own sales materials. Except as allowed hereunder, the use of GoAmerica marks is subject to prior review and written approval by GoAmerica. 6.5 GoAmerica shall provide EarthLink with Documentation which EarthLink may copy to distribute to end users who have licensed the Licensed Software, provided that all of GoAmerica's copyright, trade secret and proprietary rights notices are preserved. 6.6 EarthLink shall pay applicable media and shipping charges. 7. Ownership and Protection of Software. 7.1 Earthlink shall not use or duplicate the Licensed Software for any purpose other than as specified in this Agreement or make the Licensed Software available to unauthorized third parties. Earthlink shall protect the Licensed Software and all portions or copies thereof and all other GoAmerica confidential information or trade secrets from unauthorized copying, use, dissemination, and disclosure. EarthLink shall not permit its personnel, or any third party or end user with which it is in privity to decompose, decompile, disassemble or attempt in any way to reverse engineer or reconstruct the Licensed Software. 7.2 Earthlink shall have no rights in the Licensed Software therein except for the license rights expressly granted herein. Earthlink agrees that it will not claim or assert title to any such materials or attempt to transfer any title to end users or any third parties. 8. Escrow. 8.1 On the Effective Date, GoAmerica will enter into an escrow agreement with DSI Technology Escrow Services (the "Escrow Agreement") in the form attached hereto as Exhibit C. The terms and conditions of such escrow agreement shall be consistent with the terms and conditions of this Agreement. Upon delivery of the Licensed Software (excluding the Server Software) to EarthLink, GoAmerica shall immediately deposit the Escrow Materials with the escrow agent. Upon subsequent deliveries of the Licensed Software to EarthLink in each instance, GoAmerica will deposit with such escrow agent the Escrow Materials. The parties 3 shall share the escrow costs equally. For purposes herein, the "Escrow Materials" mean the entire computer Source Code in human readable format, corresponding to the Licensed Software (including, without limitation, the Server Software) and Enhancement Releases including all updates and enhancements thereto, documentation and all instructions sufficient to allow a skilled programmer to modify, maintain and compile the Source Code in order to allow EarthLink to use the Escrow Material for its use and enjoyment of the Licensed Software. EarthLink shall be a beneficiary under the escrow agreement. In the event of any Release Conditions set forth in the Escrow Agreement, the Escrow Materials shall be released to EarthLink in accordance with the terms of the Escrow Agreement and any Source Code to the to the Licensed Software and Server Software not in escrow shall be immediately delivered to EarthLink by GoAmerica. 8.2 In addition to its other license rights herein, EarthLink has a present, irrevocable, perpetual, fully paid-up, worldwide right to practice, operate, use, adapt, modify and create Derivative Works from the Source Code to the Licensed Software, which license may be enjoyed solely upon the occurrence of a Release Condition (as defined in the Escrow Agreement), for the sole purpose of fixing bugs and solely as necessary to support EarthLink's, EarthLink's end-users and EarthLink's sublicensee's end-users continued use of the Licensed Software. This right shall not permit EarthLink to add features, functionality or enhancements, or create Derivative Works for any other purpose. In the event of a Release Condition the escrow agent shall deliver the Escrow Materials to EarthLink upon notification by EarthLink of a Release Condition and escrow agent's confirmation thereof with GoAmerica. In addition, for the purpose of exercising the rights granted to EarthLink in this Agreement, and subject to the limitations and restrictions set forth herein EarthLink has the right to (i) authorize its affiliates or (ii) retain third parties to perform any service, function, responsibility or task necessary for EarthLink or the EarthLink end users to have the benefit of the Licensed Software in accordance with the terms of this Agreement. 8.3 EarthLink agrees to restrict access to the Source Code for the Licensed Software to those employees of EarthLink, its affiliates and third parties acting on their behalf who are directly involved, subject to the restrictions set forth herein, with development, maintenance, operation or support of the Source Code for the Licensed Software and who are legally bound to maintain the proprietary and confidential nature of such materials under a written agreement. 9. Other Rights. 9.1 Earthlink may, for its own internal support and installation of Licensed Software, remain within one (1) numbered release of the current Licensed Software version, for purposes of receiving GoAmerica support services as defined in this Agreement. 9.2 Neither Party will be responsible under this Agreement for: (a) modification or improvement of Licensed Software to fit the particular requirements of an end user; (b) the correction of program errors resulting from unauthorized modification of the Licensed Software; or (c) the correction of any program errors resulting from not using the Licensed Software in accordance with the Documentation. 4 9.3 The fees listed in this Agreement do not include taxes. GoAmerica is responsible to any pay sales, use, property, value-added, or other federal, state or local taxes based on the licenses granted under this Agreement. EarthLink is responsible to pay sales, use, property, value-added or other federal, state or local taxes on the sublicenses permitted to be granted by EarthLink hereunder. This section shall not apply to taxes based on either Party's income. 10. Right to Audit. 10.1 During the term of this Agreement, EarthLink shall maintain complete and correct financial records required to verify compliance with its payment obligations under this Agreement. At any time during the term of this Agreement and for a period of one hundred thirty five (135) days thereafter, GoAmerica shall have the right through an independent third party auditor to inspect and audit the relevant portions of EarthLink's financial records solely to verify compliance. Such audits shall take place during normal business hours upon reasonable advance written notice to EarthLink and shall occur no more frequently than on an annual basis. In the event such an examination discloses that EarthLink owes GoAmerica an amount that is five percent (5%) or more than the fees actually paid for any six month period, in addition to paying any additional amount which such audit may show is owed and interest thereon, EarthLink shall pay all costs reasonably incurred by GoAmerica in connection with the audit. 10.2 At any time during the term of this Agreement EarthLink shall have the right through an independent third party auditor to inspect and audit GoAmerica's software records solely to verify compliance GoAmerica's compliance with its escrow obligations under this Agreement and the Escrow Agreement. Such audits shall take place during normal business hours upon reasonable advance written notice to GoAmerica and shall occur no more frequently than on an annual basis. In the event such an examination discloses that GoAmerica is not in compliance, GoAmerica shall pay all costs reasonably incurred by EarthLink in connection with the audit. 11. Confidentiality. 11.1 Definition. The term "Confidential Information" shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed, or information designated as confidential at the time of disclosure, or summarized in writing as confidential promptly after disclosure or made available by either Party (the "disclosing Party") to the other (the "receiving Party") in connection with the efforts contemplated hereunder and which may reasonably be understood as confidential, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements. 11.2 Confidential Information. The receiving Party shall disclose the Disclosing Party's Confidential Information only to persons within the receiving Party (including its attorneys and auditors) having the need to know the Confidential Information for the purposes of this Agreement. The receiving Party shall treat Confidential Information as it does its own 5 proprietary and confidential information of a similar nature, and, in any event, with not less than reasonable care. Upon the disclosing Party's written request, the receiving Party shall return or certify the destruction of all Confidential Information, and shall continue for three (3) years from the date of return or destruction of such information to hold such Confidential Information secret, provided that Confidential Information related to trade secrets shall remain confidential indefinitely. 11.3 Exceptions. The obligations of either Party under this Section 11 will not apply to information that the receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of this Agreement or other wrongful act by the receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of this Agreement or other wrongful act by the receiving Party, (iv) is independently developed by the receiving Party without any reference to the Confidential Information of the Disclosing Party, or (v) is required to be disclosed by order of a court of competent jurisdiction or regulatory authority, provided that the receiving Party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the disclosing Party, at the disclosing Party's cost and expense, in any effort made by the disclosing Party to seek a protective order or other appropriate protection of its Confidential Information. 11.4 Injunctive Relief. Failure on the part of receiving Party to abide by this Section 11 shall cause disclosing Party irreparable harm for which damages, although available, will not be an adequate remedy at law. Accordingly, disclosing Party has the right to seek an injunction to prevent any further violations of this Section 11 and recover court costs and reasonable attorney fees incurred in its enforcement of this Section 11. 12. Representations and Warranties. GoAmerica makes the following representations, warranties and covenants to EarthLink: 12.1 Non-Infringement. The Licensed Software shall not violate or infringe upon any third party's intellectual property. 12.2 Third Party Software. GoAmerica represents and warrants to EarthLink that the Third Party Software contained, practiced or used in the Licensed Software are licensed to GoAmerica and GoAmerica has the right to provide such Third Party Software to EarthLink for its use as contemplated herein. 12.3 Defects. For a period of one (1) year after the earlier of delivery by GoAmerica, the Licensed Software shall be free from defects in design, material and workmanship and from programming and other errors and shall substantially conform to the Documentation. GoAmerica shall repair the Licensed Software in accordance with the Error Correction procedures set forth in Exhibit D. 13. Indemnification. 13.1 Non Infringement. GoAmerica (the "Indemnifying Party") shall indemnify, defend and hold harmless EarthLink (the "Indemnified Party") and its officers, directors, 6 employees, affiliates and agents from and against all liability, damages, loss, costs and expenses (including but not limited to reasonable attorneys' fees and expenses) arising out of or in connection with any act or omission of the Indemnifying Party as to any claim, suit, action or proceeding based upon or arising out of (i) the alleged or actual infringement or misappropriation of the Licensed Software or (ii) the use of the Third Party Software, provided however, GoAmerica shall not liable under this provisions to the extent such claim of infringement or misappropriation was caused by the unauthorized use of the Licensed Software and would not have occurred without such unauthorized use. 13.2 Procedures. EarthLink shall (i) notify GoAmerica of any matters in respect of which the indemnity may apply and of which EarthLink has knowledge; (ii) give GoAmerica full opportunity to control the response thereto and the defense thereof, including any agreement relating to the settlement thereof, provided that GoAmerica shall not settle any such claim or action without the prior written consent of EarthLink; and (iii) reasonably cooperate with GoAmerica, at its cost and expense in the defense or settlement thereof. EarthLink may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice. 14. Term and Termination. 14.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect unless terminated as described herein. 14.2 Termination For Cause. Either Party shall have the right to terminate this Agreement, immediately in the event of (i) a material breach or default of any provision of this Agreement and the failure by the breaching Party to cure such breach within thirty (30) days, or such longer period as agreed by the Parties in writing, of receipt of written notice of same from the aggrieved Party; (ii) a Party files in any court pursuant to any statute, a petition in bankruptcy or insolvency and such petition is not dismissed within thirty (30) days after the filing thereof, or for reorganization in bankruptcy or for an arrangement for the appointment of a receiver or trustee of that Party or of its assets; (iii) a Party is served with an involuntary petition against it, filed in any insolvency proceeding, and such petition is not dismissed within thirty (30) days after the filing thereof; (iv) a Party proposes to be a Party to any dissolution; or (v) a Party makes an assignment for the benefit of creditors. This Agreement shall terminate automatically and immediately upon (i) the termination of the Acquisition Agreement or (ii) the occurrence of a Release Condition. 14.3 Effect of Termination. Upon any termination of this Agreement due to (i) an uncured breach by GoAmerica of this Agreement or any of the Related Agreements or (ii) the occurrence of a Release Condition, EarthLink will (i) immediately pay to GoAmerica any amounts that accrued prior to the effective date of termination and (ii) not have any payment obligations under this Agreement to GoAmerica of any kind (including, without limitation, any manner of license, royalty, service, maintenance, support or other fees) after such effective date of termination. The Parties agree that any termination of this Agreement by EarthLink due to (i) an uncured material breach of this Agreement or (ii) the termination of a Related Agreement due to an uncured material breach of such Related Agreement shall be treated as a failure of GoAmerica's obligations under this Agreement for purposes of the Escrow Agreement. 7 15. General. 15.1 Force Majeure. In the event that either Party is unable to perform any of its obligations under this Agreement because of any event beyond the control of such Party including, but not limited to, natural disaster, acts of God, wars or acts of terrorism, actions or decrees of governmental bodies or failure of communications lines or networks (a "Force Majeure Event"), the Party who cannot perform its obligations shall promptly give written notice to the other Party and shall use its best commercially reasonable efforts to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended for the duration of such Force Majeure Event. 15.2 Notices. All notices or other communications hereunder shall be in writing and shall be delivered by hand, facsimile or sent, postage prepaid, by registered or certified mail or reputable overnight courier service and shall be deemed given when so delivered by hand or facsimile, or, if mailed, five days after mailing (one business day in the case of overnight courier) addressed to the intended recipient as set forth below: If to GoAmerica: Aaron Dobrinsky Chairman and CEO GoAmerica, Inc. 433 Hackensack Avenue Hackensack, NJ 07601 Fax: 201-527-1772 with a copy to: GoAmerica, Inc. ATTN: General Counsel 433 Hackensack Avenue Hackensack, NJ 07601 Fax: 201-527-1081 If to EarthLink: Brent Cobb Vice President EarthLink, Inc. 1375 Peachtree Street Atlanta, GA 30309 Fax: 404-287-4905 with copies to: EarthLink, Inc. 1375 Peachtree Street Atlanta, GA 30309 Attn: Legal Department Fax: 404-287-4905 8 Hunton & Williams 600 Peachtree Street, NE Suite 4100 Atlanta, GA 30308 Attn: W. Tinley Anderson, III Fax: 404-888-4190 15.3 Waiver. The waiver by any party of any of its rights or breaches of the other party under this Agreement in a particular instance shall not be construed as a waiver of the same or different rights or breaches in subsequent instances. All remedies, rights, undertakings and obligations hereunder shall be cumulative and none shall operate as a limitation of any other remedy, right, undertaking or obligation thereof. No failure or delay by any party in exercising any right, power or privilege hereunder (and no course of dealing between or among any of the parties) shall operate as a waiver of any such right, power or privilege. 15.4 Severability of Provisions. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. 15.5 Bankruptcy. All rights and licenses granted hereunder or pursuant hereto are, and shall be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses to rights of "intellectual property," as defined thereunder. Notwithstanding any provision contained herein to the contrary, if the licensor of such rights is under any proceeding under the United States Bankruptcy Code and the trustee in bankruptcy of such party, or such party, as a debtor in possession, rightfully elects to reject this Agreement, the licensed party may, pursuant to Sections 365(n)(1) and 365(n)(2) of the United States Bankruptcy Code, retain any and all of the rights licensed to it hereunder, to the maximum extent permitted by law. 15.6 Governing Law and Forum. The laws of Delaware shall govern this Agreement without giving effect to applicable conflict of laws provisions. The federal and state courts located in Atlanta, Georgia alone have jurisdiction over all disputes brought by GoAmerica arising out of or related to this Agreement. GoAmerica consents to the personal jurisdiction of such courts sitting in Georgia with respect to such matters, and waives GoAmerica's rights to removal or consent to removal. The federal and state courts located in Newark, New Jersey alone have jurisdiction over all disputes brought by EarthLink arising out of or related to this Agreement. EarthLink consents to the personal jurisdiction of such courts sitting in New Jersey with respect to such matters, and waives EarthLink's rights to removal or consent to removal. In the event any litigation or other proceeding is brought by either party in connection with this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to recover from the other party all costs, reasonable attorneys' fees and other reasonable expenses incurred by such prevailing party in such litigation. 15.7 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of GoAmerica and EarthLink and each of their respective heirs, representatives, successors, and permitted assigns, in accordance with the terms hereof. This Agreement shall not be assignable by GoAmerica without the prior written consent of EarthLink. This Agreement shall be assignable by EarthLink to any of its affiliates without the prior written consent of GoAmerica. 9 15.8 Entire Agreement. This Agreement, any Exhibits attached hereto and each of the other Related Agreements, constitute the entire understanding and agreement with respect to the subject matter hereof and thereof, and supersede any and all prior understandings and agreements, whether oral or written, between the parties relating to the subject matter hereof and thereof, all of which are merged in this Agreement and the other Related Agreements. The Agreement shall not be revised, amended, or in any way modified except in writing executed by both parties. 15.9 Amendment. This Agreement may be amended, supplemented or modified only by a written instrument duly executed by or on behalf of each Party. 15.10 Headings. Section headings contained in this Agreement and any attachments are inserted for convenience or reference only, shall not be deemed to be a part of this Agreement for any other purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions herein. 15.11 Counterparts. This Agreement and any attachment may be executed in two counterparts, each of which shall be deemed to be an original, and both of which, when taken together, shall constitute one and the same instrument. 15.12 Independent Contractors. The relationship of the Parties hereunder shall be that of independent contractors. Nothing herein shall be construed to constitute a partnership between or joint venture of the Parties, nor shall either Party be deemed the agent of the other or have the right to bind the other in any way without the prior written consent of the other. 15.13 Effects of Expiration or Termination. Upon the expiration or termination of this Agreement, all rights and obligations of the parties under this Agreement shall terminate, except the rights and obligations under Sections 2, 3, 4, 7, 8, 9, 11, 12, 13, 14 and 15 herein shall survive expiration or termination of the Agreement. 15.14 Construction. The Parties have jointly participated in the negotiating and drafting of this Agreement. In the event of an ambiguity or question of intent or interpretation with respect to any provision hereof, this Agreement (and any applicable or relevant provision(s)) shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any one Party by virtue of the authorship of any of the provisions of this Agreement. 15.15 Marks. Neither party shall use the other Party's trademarks, trade names, or trade dress (including in advertising) other than for purposes specifically authorized in writing by the other Party. Neither Party will represent directly or indirectly that any of their products, services or organizations are products, services, or organizations of the other Party or any of the other Party's affiliates, nor that any of their services are made in accordance with or utilize any information of the other Party or any of its affiliates. Neither Party shall claim any ownership interest or any other rights in any of the other Party's marks or logos and all benefits of use shall be for the benefit of the Party owning such marks or logos. Upon termination of this Agreement, any and all rights or privileges granted by one Party to the other Party to use any of its marks or 10 logos shall immediately expire, and each Party shall immediately discontinue the use of the other Party's marks and logos except as may otherwise be agreed. 15.16 Publicity. Neither party may issue a press release of any kind regarding the Parties relationship established hereunder without the prior written approval of the other party. Notwithstanding the foregoing, each Party agrees to work with the other Party to prepare press releases to ensure that each Party is able meet any reporting requirements required by law. IN WITNESS WHEREOF, the authorized officers of the Parties hereto have executed this Agreement as of the Effective Date. EarthLink, Inc. By: /s/ Brent Cobb ------------------------------------ Brent Cobb, Vice President GoAmerica, Inc. By: /s/ Aaron Dobrinksy ------------------------------------- Name: Aaron Dobrinksy ---------------------------------- Title: CEO --------------------------------- GoAmerica Communications Corporation By: /s/ Aaron Dobrinksy ------------------------------------ Name: Aaron Dobrinksy --------------------------------- Title: CEO --------------------------------- [Signature Page to EarthLink-GoAmerica License Agreement] 11 EXECUTION COPY Exhibit A Definitions Derivative Work. "Derivative Work" has the meaning ascribed to it under the United States Copyright Law, Title 17 U.S.C. Sec. 101 et. seq., as the same may be amended from time to time. Documentation. "Documentation" means the functional and design specifications, the programmer and user manuals, programmer and user guides, instructions and other such programmer and end user operating documentation (including on-line help files), each for a specified software program and in electronic/diskette and human readable/hard copy formats. Embodiment of Intellectual Property. "Embodiment of Intellectual Property" has the meaning assigned to such term in the Bankruptcy Protection Act. Enhancement. "Enhancement" to any Licensed Software means a revision or modification thereto which is intended to improve such Licensed Software's efficiency or to incorporate significant additional or alternative functionality. Enhancements are evidenced by a version number (e.g. "X.O") versus a point release (e.g. "O.X") in accordance with industry practices. Enhancement Release. "Enhancement Release" means, with respect to the Licensed Software, a new version or release thereof in Object Code and Source Code versions which incorporates Enhancements not found in such Licensed Software's then-current version, together with any Maintenance Modifications associated therewith, with the Documentation related thereto (all in electronic/diskette and human readable/hard copy formats). Error. "Error" means a programming error, logic error or "bug" within a Licensed Software or Enhancement Release, or other defect in a Licensed Software or Enhancement Release that causes it to operate incorrectly or otherwise not in conformity with the associated Documentation. Error Correction. "Error Correction" with respect to a Licensed Software or Enhancement Release means that it is made to conform to its Documentation, respectively, and that any reported Error is properly remedied. Level 1 Support. "Level 1 Support" means receipt and management of all internal user and customer support calls, and provision of fixes for known problems to the extent such action is reasonable without access to the Source Code for the Licensed Software or Enhancement Releases. Level 2 Support. "Level 2 Support" means reproducing and isolating problems, developing workarounds for problems and testing software fixes to the extent such action is reasonable without access to the Source Code for the Licensed Software or Enhancement Releases. 12 Level 3 Support. "Level 3 Support" means the provision of software fixes for the correction of Errors and as further defined in Exhibit E of this Agreement. Licensed Software. "Licensed Software" means the software set forth on Exhibit B hereto and the Server Software. Maintenance Modification. "Maintenance Modification" to an Enhancement Release means a revision or modification thereto which provides Error Correction or which otherwise remedies nonconformities of the Enhancement Releases from its associated Documentation, together with the Documentation related thereto. Maintenance Services. "Maintenance Services" means those support and maintenance services described in Exhibit D. Object Code. "Object Code" means the representation of a Licensed Software and an Enhancement Release in the binary instruction code form suitable for execution on or by a computer, or which may be so suitable after linkage or incorporation with or into other such code. Server Software. "Server Software" means any server based software necessary to run the Licensed Software. Source Code. "Source Code" means the representation of a Licensed Software and an Enhancement Release in the form amenable to human understanding, as written in a higher level computer programming language, together with all comments included therein and other programmer documentation (including and such as flow charts, pseudocode or logic diagrams) therefor. Updates. "Updates" means all general release bug fixes, updates, Maintenance Modifications, Enhancements and upgrades to the Licensed Software and Documentation however described or denominated, including compliance updates. Third Party Software. "Third Party Software" means all software owned by a third party or licensed to GoAmerica that is included with the Licensed Software 13 EXECUTION COPY Exhibit B Licensed Software o Go.Web [**] Source Code o Go.Web [**] Source Code o Go.Web [**] Source Code o Go.Web [**] Source Code 14 EXECUTION COPY Exhibit C Escrow Agreement 15 EXECUTION COPY PREFERRED ESCROW AGREEMENT Account Number ______________________ This agreement ("Agreement") is effective September 25, 2002 among DSI Technology Escrow Services, Inc. ("DSI"), GoAmerica, Inc. ("Depositor") and EarthLink, Inc. ("Preferred Beneficiary"), who collectively may be referred to in this Agreement as the parties ("Parties"). A. Depositor and Preferred Beneficiary have entered or will enter into a License Agreement and a Technology Development Agreement regarding certain proprietary technology of Depositor (referred to in this Agreement as "the License Agreements"). B. Depositor desires to avoid disclosure of its proprietary technology except under certain limited circumstances. C. The availability of the proprietary technology of Depositor is critical to Preferred Beneficiary in the conduct of its business and, therefore, Preferred Beneficiary needs access to the proprietary technology under certain limited circumstances. D. Depositor and Preferred Beneficiary desire to establish an escrow with DSI to provide for the retention, administration and controlled access of the proprietary technology materials of Depositor. E. The parties desire this Agreement to be supplementary to the License Agreements pursuant to 11 United States Bankruptcy Code, Section 365(n). ARTICLE 1 -- DEPOSITS 1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the parties, Depositor shall deliver to DSI the proprietary technology and other materials ("Deposit Materials") required to be deposited by the License Agreements or, if the License Agreements do not identify the materials to be deposited with DSI, then such materials will be identified on Exhibit A. If Exhibit A is applicable, it is to be prepared and signed by Depositor and Preferred Beneficiary. DSI shall have no obligation to either party with respect to the preparation, accuracy, execution or delivery of Exhibit A. 1.2 Identification of Tangible Media. Prior to the delivery of the Deposit Materials to DSI, Depositor shall conspicuously label for identification each document, magnetic tape, disk, or other tangible media upon which the Deposit Materials are written or stored. Additionally, Depositor shall complete Exhibit B to this Agreement by listing each such tangible media by the item label description, the type of media and the quantity. Exhibit B shall be signed by Depositor and delivered to DSI with the Deposit Materials. Unless and until Depositor makes 16 the initial deposit with DSI, DSI shall have no obligation with respect to this Agreement, except the obligation to notify the parties regarding the status of the account as required in Section 2.2 below. 1.3 Acceptance of Deposit. When DSI receives the Deposit Materials, DSI will conduct a deposit inspection. At completion of the deposit inspection, if DSI determines that the labeling of the tangible media matches the item descriptions and quantity on Exhibit B, DSI will date and sign Exhibit B and mail a copy thereof to Depositor and Preferred Beneficiary. If DSI determines that the labeling does not match the item descriptions or quantity on Exhibit B, DSI will (a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B with the exceptions noted; and (c) mail a copy of Exhibit B to Depositor and Preferred Beneficiary. DSI's acceptance of the deposit occurs upon the signing of Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary is Preferred Beneficiary's notice that the Deposit Materials have been received and accepted by DSI. Other than DSI's inspection of the Deposit Materials, DSI shall have no obligation to the accuracy, completeness, functionality, performance or non-performance of the Deposit Materials. 1.4 Depositor's Representations. Depositor represents as follows: a. Depositor lawfully possesses all of the Deposit Materials deposited with DSI; b. With respect to all of the Deposit Materials, Depositor has the right and authority to grant to DSI and Preferred Beneficiary the rights as provided in this Agreement; c. As of the effective date of this Agreement, the Deposit Materials are not the subject of a lien or encumbrance, however, any liens or encumbrances made after the execution of this Agreement will not prohibit, limit, or alter the rights and obligations of DSI under this Agreement; d. The Deposit Materials consist of the proprietary technology and other materials identified either in the License Agreements or Exhibit A, as the case may be; and e. The Deposit Materials are readable and useable in their current form or, if any portion of the Deposit Materials is encrypted, the decryption tools and decryption keys have also been deposited. 1.5 Available Verification Services. Upon receipt of a written request from Preferred Beneficiary, DSI and Preferred Beneficiary may enter into a separate proposal agreement pursuant to which DSI will agree, upon certain terms and conditions, to inspect the Deposit Materials for the purpose of verifying its accuracy, completeness, sufficiency and quality ("Verification Proposal Agreement"). Depositor shall reasonably cooperate with DSI by providing its facilities, computer software systems, and technical and support personnel for verification whenever reasonably necessary. If a verification is elected after the Deposit Materials have been delivered to DSI, then only DSI, or at DSI's election, an independent contractor or company selected by DSI, may perform the verification. 17 1.6 Deposit Updates. Unless otherwise provided by the License Agreements, Depositor shall update the Deposit Materials within sixty (60) days of each release of a new version of the product, which is subject to the License Agreements. Such updates will be added to the existing deposit. All deposit updates shall be listed on a new Exhibit B and Depositor shall sign the new Exhibit B. Each Exhibit B will be held and maintained separately within the escrow account. An independent record will be created which will document the activity for each Exhibit B. The processing of all deposit updates shall be in accordance with Sections 1.2 and 1.3 above. All references in this Agreement to the Deposit Materials shall include the initial Deposit Materials and any updates. 1.7 Removal of Deposit Materials. The Deposit Materials may be removed and/or exchanged only on written instructions signed by Depositor and Preferred Beneficiary, or as otherwise provided in this Agreement. ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING 2.1 Confidentiality. DSI shall have the obligation to reasonably protect the confidentiality of the Deposit Materials. Except as provided in this Agreement or any subsequent agreement between the Parties, DSI shall not disclose, transfer, make available, or use the Deposit Materials. DSI shall not disclose the terms of this Agreement to any third party. If DSI receives a subpoena or any other order from a court or other judicial tribunal pertaining to the disclosure or release of the Deposit Materials, DSI will immediately notify the parties to this Agreement unless prohibited by law. It shall be the responsibility of Depositor and/or Preferred Beneficiary to challenge any such order; provided, however, that DSI does not waive its rights to present its position with respect to any such order. DSI will not be required to disobey any order from a court or other judicial tribunal, including, but not limited to, notices delivered pursuant to Section 7.6 below. 2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary a report profiling the account history semi-annually. ARTICLE 3 -- RIGHT TO MAKE COPIES 3.1 Right to Make Copies. DSI shall have the right to make copies of the Deposit Materials as reasonably necessary to perform this Agreement. DSI shall copy all copyright, nondisclosure, and other proprietary notices and titles contained on the Deposit Materials onto any copies made by DSI. With all Deposit Materials submitted to DSI, Depositor shall provide any and all instructions as may be necessary to duplicate the Deposit Materials including, but not limited to, the hardware and/or software needed. Any copying expenses incurred by DSI as a result of a request to copy will be borne by the party requesting the copies. Alternatively, DSI may notify Depositor requiring its reasonable cooperation in promptly copying the Deposit Materials in order for DSI to perform this Agreement. 18 ARTICLE 4 -- RELEASE OF DEPOSIT 4.1 Release Conditions. As used in this Agreement, "Release Condition" shall mean the following: a. Depositor's failure to carry out obligations imposed on it pursuant to the License Agreements; or b. Depositor's failure to continue to do business in the ordinary course. 4.2 Filing For Release. If Preferred Beneficiary believes in good faith that a Release Condition has occurred, Preferred Beneficiary may provide to DSI written notice of the occurrence of the Release Condition and a request for the release of the Deposit Materials. Within five (5) business days of receipt of a written notice, DSI shall provide a copy of the notice to Depositor. DSI will promptly notify the Parties unless DSI acknowledges or discovers independently, or through the Parties, its need for additional documentation or information in order to comply with this Section. Such need for additional documentation or information may extend the time period for DSI's performance under this section. 4.3 Contrary Instructions. From the date DSI mails the notice requesting release of the Deposit Materials, Depositor shall have ten (10) business days to deliver to DSI contrary instructions ("Contrary Instructions"). Contrary Instructions shall mean the written representation by Depositor that a Release Condition has not occurred or has been cured. Upon receipt of Contrary Instructions, DSI shall send a copy to Preferred Beneficiary by commercial express mail. Additionally, DSI shall notify both Depositor and Preferred Beneficiary that there is a dispute to be resolved pursuant to Section 7.4 of this Agreement. Subject to Section 5.2 of this Agreement, DSI will continue to store the Deposit Materials without release pending (a) joint instructions from Depositor and Preferred Beneficiary; (b) dispute resolution pursuant to Section 7.4; or (c) an order from a court of competent jurisdiction. 4.4 Release of Deposit. If DSI does not receive Contrary Instructions from the Depositor, DSI is authorized to release the Deposit Materials to the Preferred Beneficiary or, if more than one beneficiary is registered to the deposit, to release a copy of the Deposit Materials to the Preferred Beneficiary. However, DSI is entitled to receive any fees due DSI before making the release. Any copying expenses will be chargeable to Preferred Beneficiary. This Agreement will terminate upon the release of the Deposit Materials held by DSI. 4.5 Right to Use Following Release. Unless otherwise provided in the License Agreements, upon release of the Deposit Materials in accordance with this Article 4, Preferred Beneficiary shall have the right to use the Deposit Materials for the sole purpose of continuing the benefits afforded to Preferred Beneficiary by the License Agreements. Preferred Beneficiary shall be obligated to maintain the confidentiality of the released Deposit Materials. 19 ARTICLE 5 -- TERM AND TERMINATION 5.1 Term of Agreement. The initial term of this Agreement is for a period of one year. Thereafter, this Agreement shall automatically renew from year-to-year unless (a) Depositor and Preferred Beneficiary jointly instruct DSI in writing that the Agreement is terminated; (b) DSI instructs Depositor and Preferred Beneficiary in writing ninety (90) days after its renewal date, that the Agreement is terminated for nonpayment in accordance with Section 5.2; or (c) DSI reserves the right to terminate this Agreement, for any reason, other than for nonpayment, by providing Depositor and Preferred Beneficiary sixty (60) days written notice of its intent to terminate this Agreement. If the Deposit Materials are subject to another escrow agreement with DSI, DSI reserves the right, after the initial one year term, to adjust the anniversary date of this Agreement to match the then prevailing anniversary date of such other escrow arrangements. 5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed to DSI, DSI shall provide written notice of delinquency to all parties to this Agreement. Any party to this Agreement shall have the right to make the payment to DSI to cure the default. If the past due payment is not received in full by DSI within one (1) month of the date of such notice, then DSI shall have the right to terminate this Agreement at any time thereafter by sending written notice of termination to all parties. DSI shall have no obligation to take any action under this Agreement so long as any payment due to DSI remains unpaid. 5.3 Disposition of Deposit Materials Upon Termination. Subject to the foregoing termination provisions, and upon termination of this Agreement, DSI shall destroy, return, or otherwise deliver the Deposit Materials in accordance with Depositor's instructions. If there are no instructions, DSI may, at its sole discretion, destroy the Deposit Materials or return them to Depositor. DSI shall have no obligation to destroy or return the Deposit Materials if the Deposit Materials are subject to another escrow agreement with DSI or have been released to the Preferred Beneficiary in accordance with Section 4.4. 5.4 Survival of Terms Following Termination. Upon termination of this Agreement, the following provisions of this Agreement shall survive: a. Depositor's Representations (Section 1.4); b. The obligations of confidentiality with respect to the Deposit Materials; c. The obligation to pay DSI any fees and expenses due; d. The provisions of Article 7; and e. Any provisions in this Agreement which specifically state they survive the termination of this Agreement. 20 ARTICLE 6 -- DSI'S FEES 6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses applicable to the services provided. DSI shall notify the party responsible for payment of DSI's fees at least sixty (60) days prior to any increase in fees. For any service not listed on DSI's standard fee schedule, DSI will provide a quote prior to rendering the service, if requested. 6.2 Payment Terms. DSI shall not be required to perform any service, including release of any Deposit Materials under Article 4, unless the payment for such service and any outstanding balances owed to DSI are paid in full. Fees are due upon receipt of a signed contract or receipt of the Deposit Materials whichever is earliest. If invoiced fees are not paid, DSI may terminate this Agreement in accordance with Section 5.2. ARTICLE 7 -- LIABILITY AND DISPUTES 7.1 Right to Rely on Instructions. DSI may act in reliance upon any instruction, instrument, or signature reasonably believed by DSI to be genuine. DSI may assume that any employee of a party to this Agreement who gives any written notice, request, or instruction has the authority to do so. DSI will not be required to inquire into the truth or evaluate the merit of any statement or representation contained in any notice or document. DSI shall not be responsible for failure to act as a result of causes beyond the reasonable control of DSI. 7.2 Indemnification. Depositor and Preferred Beneficiary each agree to indemnify, defend and hold harmless DSI from any and all claims, actions, damages, arbitration fees and expenses, costs, attorney's fees and other liabilities ("Liabilities") incurred by DSI relating in any way to this escrow arrangement, except where it is adjudged that DSI acted with gross negligence or willful misconduct. 7.3 Limitation of Liability. In no event will DSI be liable for any incidental, indirect, special, exemplary, punitive or consequential damages, including, but not limited to, damages (including loss of data, revenue, and/or profits) costs or expenses (including legal fees and expenses), whether foreseeable or unforeseeable, that may arise out of or in connection with this Agreement; and in no event shall the collective liability of DSI exceed ten times the fees paid under this Agreement. The foregoing limitation of liability does not apply with respect to any acts of gross negligence, personal injury claims, property damage claims (excluding the Deposit), or intellectual property infringement ("Exclusions"). With the exception of the Exclusions, DSI shall in no event be liable for any incidental, punitive, special, indirect or consequential damages. 7.4 Dispute Resolution. Any dispute relating to or arising from this Agreement shall be submitted to, and settled by arbitration by, a single arbitrator chosen by the San Diego Regional Office of the American Arbitration Association in accordance with the Commercial Rules of the American Arbitration Association. The arbitrator shall apply California law. Unless otherwise agreed by Depositor and Preferred Beneficiary, arbitration will take place in San Diego, California, U.S.A. Any court having jurisdiction over the matter may enter judgment on the award of the arbitrator. Service of a petition to confirm the arbitration award may be made by First Class mail or by commercial express mail, to the attorney for the party or, if unrepresented, 21 to the party at the last known business address. If, however, Depositor and/or Preferred Beneficiary refuses to submit to arbitration, the matter shall not be submitted to arbitration and DSI may submit the matter to any court of competent jurisdiction for an interpleader or similar action. Any costs incurred by DSI, including reasonable attorney's fees and costs, shall be divided equally and paid by Depositor and Preferred Beneficiary. 7.5 Controlling Law. This Agreement is to be governed and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions. 7.6 Notice of Requested Order. If any party intends to obtain an order from the arbitrator or any court of competent jurisdiction, which may direct DSI to take, or refrain from taking any action, that party shall: a. Give DSI at least five (5) business days' prior to notice of the hearing; b. Include in any such order that, as a precondition to DSI's obligation, DSI be paid in full for any past due fees and be paid for the reasonable value of the services to be rendered pursuant to such order; and c. Ensure that DSI not be required to deliver the original (as opposed to a copy) of the Deposit Materials if DSI may need to retain the original in its possession to fulfill any of its other duties. ARTICLE 8 -- GENERAL PROVISIONS 8.1 Entire Agreement. This Agreement, which includes Exhibits described herein, embodies the entire understanding among the parties with respect to its subject matter and supersedes all previous communications, representations or understandings, either oral or written. DSI is not a party to the License Agreements between Depositor and Preferred Beneficiary and has no knowledge of any of the terms or provisions of any such License Agreements. DSI's only obligations to Depositor or Preferred Beneficiary are as set forth in this Agreement. No amendment or modification of this Agreement shall be valid or binding unless signed by all the parties hereto, except that Exhibit A need not be signed by DSI, Exhibit B need not be signed by Preferred Beneficiary and Exhibit C need not be signed. 8.2 Notices. All notices, invoices, payments, deposits and other documents and communications shall be given to the parties at the addresses specified in the attached Exhibit C. It shall be the responsibility of the parties to notify each other as provided in this Section in the event of a change of address. The parties shall have the right to rely on the last known address of the other parties. Any correctly addressed notice or last known address of the other parties that is relied on herein that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified as provided herein shall be deemed effective as of the first date that said notice was refused, unclaimed, or deemed undeliverable by the postal authorities by mail, through messenger or commercial express delivery services. Unless otherwise provided in this Agreement, all documents and communications may be delivered by First Class mail. 22 8.3 Severability. In the event any provision of this Agreement is found to be invalid, voidable or unenforceable, the parties agree that unless it materially affects the entire intent and purpose of this Agreement, such invalidity, voidability or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision. 8.4 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties. However, DSI shall have no obligation in performing this Agreement to recognize any successor or assign of Depositor or Preferred Beneficiary unless DSI receives clear, authoritative and conclusive written evidence of the change of parties. 8.5 Waiver. Any term of this Agreement may be waived by the party entitled to the benefits thereof, provided that any such waiver must be in writing and signed by the party against whom the enforcement of the waiver is sought. No waiver of any condition, or breach of any provision of this Agreement, in any one or more instances, shall be deemed to be a further or continuing waiver of such condition or breach. Delay or failure to exercise any right or remedy shall not be deemed the waiver of that right or remedy. 8.6 Regulations. Depositor and Preferred Beneficiary are responsible for and warrant compliance with all applicable laws, rules and regulations, including but not limited to customs laws, import, export, and re-export laws and government regulations of any country from or to which the Deposit Materials may be delivered in accordance with the provisions of this Agreement. 8.7 Attorney's Fees. In any litigation or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks declaration of any rights or obligations under this Agreement, the prevailing party who has proven by court decree, judgment or arbitrator's determination that the other party has materially breached its representation and/or warranty under this Agreement shall be awarded reasonable attorneys' fees, together with any costs and expenses, to resolve the dispute and to enforce final judgment. 8.8 No Third Party Rights. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective permitted successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement unless otherwise agreed to by all the parties hereto. 8.9 Authority to Sign. Each of the Parties herein represents and warrants that the execution, delivery, and performance of this Agreement has been duly authorized and signed by a person who meets statutory or other binding approval to sign on behalf of its business organization as named in this Agreement. 8.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 23 GOAMERICA, INC. EARTHLINK, INC. Depositor Preferred Beneficiary By: /s/Aaron Dobrinsky By: /s/Brent Cobb ---------------------------------- ----------------------------------- Name: Aaron Dobrinsky Name: Brent Cobb --------------------------------- Title: Chairman & CEO Title: Vice President Date:________________________________ Date:________________________________ DSI Technology Escrow Services, Inc. By:______________________________________________ Name:____________________________________________ Title:___________________________________________ Date: ___________________________________________ 24 EXHIBIT A MATERIALS TO BE DEPOSITED Account Number ______________________ Depositor represents to Preferred Beneficiary that Deposit Materials delivered to DSI shall consist of the following: |X| Go.Web [**] - Source Code |X| Go.Web [**] - Source Code |X| Go.Web [**] - Source Code |X| Go.Web [**]- Source Code |X| Go.Web [**]- Source Code |X| Documentation - Go.Web Client/Server Source Code Overview |X| Go.Web Installers - Source Code and build files for [**] GOAMERICA, INC. EARTHLINK, INC. Depositor Preferred Beneficiary By: By: --------------------------------- --------------------------------- Name: Name: Brent Cobb Title: Title: Vice President Date:________________________________ Date:________________________________ 25 EXHIBIT B DESCRIPTION OF DEPOSIT MATERIALS Depositor Company Name: GOAMERICA, INC. Account Number _________________________________________________________________ Product Name Go.Web Client/Server Source Code (Initial Deposit) --------------------------------------------------------- Version (see below) -------------------- (Product Name will appear as the Exhibit B Name on Account History report) DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item - -------------------------------------------------------------------------------------------- 1 CD-ROM Go.Web Client/Server Source Code (Initial Deposit) |X| Go.Web [**] - Source Code [**] |X| [**]Go.Web [**] - Source Code [**] |X| [**]Go.Web [**] - Source Code [**] |X| [**]Go.Web [**] - Source Code [**] |X| [**]Go.Web [**] - Source Code [**] 1 Go.Web Installers - Source Code and build files for [**] 1 Documentation Go.Web Client/Server Source Code Overview
26 PRODUCT DESCRIPTION: Includes the most recent Go.Web Client source code and build files [**]. Also includes the most recent source code and build files for the Go.Web Server. Environment: Go.Web Clients built on [**] and run on their --------------------------------------------------------- respective target platforms, Go.Web Server requires [**]. - --------------------------------------------------------- DEPOSIT MATERIAL INFORMATION: Is the media or are any of the files encrypted? YES / No If yes, please include any passwords and the decryption tools. Password provided in Source Code --------------------------------- Overview document ------------------ Encryption tool name Zip file format Version N/A ----------------- ----------------------- Hardware required [**] compatible for Client builds, ----------------------------------------------- [**] for Server --------------------- Software required [**] for Client builds, [**] for Server --------------------------------------------------- Other required information see Source Code Overview document for additional ------------------------------------------------- information ------------ I certify for Depositor that the DSI has accepted the above above described Deposit Materials materials (any exceptions are noted have been transmitted to DSI: above): Signature__________________________ Signature__________________________ Print Name_________________________ Print Name_________________________ Date_______________________________ Date Accepted______________________ Exhibit B#_________________________ 27 EXHIBIT C DESIGNATED CONTACT Account Number_____________________ Notices, deposit material returns and Notices and communications to communications to Depositor should be addressed: Preferred Beneficiary should be addressed to: Company Name: GoAmerica, Inc. Company Name: EarthLink, Inc. Address: 433 Hackensack Avenue Address: 1375 Peachtree Street Hackensack, NJ 07601 Atlanta, GA 30309 Designated Contact: Aaron Dobrinsky Designated Contact: Brent Cobb Telephone: ____________________________________________ Telephone ____________________________________________ Facsimile: ____________________________________________ Facsimile: 404-287-4905 E-mail: _______________________________________________ E-mail: cobbb@corp.earthlink.net Verification Contact: _________________________________ Telephone/E-mail: ____________________________________ Fees for this agreement will be paid by (check box): (|X|) Depositor and/or (|X|) Preferred Beneficiary Invoices to Depositor should be addressed to: Invoices to Preferred Beneficiary should be addressed to: Company Name:__________________________________________ Company Name: EarthLink, Inc. Address: ____________________________________________ Address: 1375 Peachtree Street ____________________________________________ Atlanta, GA 30309 Billing Contact:_______________________________________ Billing Contact: Brent Cobb Telephone: ____________________________________________ Telephone ____________________________________________ Facsimile: ____________________________________________ Facsimile: 404-287-4905 E-mail: _______________________________________________ E-mail: cobbb@corp.earthlink.net P.O.# ________________________________________________ P.O.#:________________________________________________
Requests from Depositor or Preferred Beneficiary to change the designated contact should be given in writing by the designated contact or an authorized employee of Depositor or Preferred Beneficiary.
DSI has two Operations Centers to service you. All invoice fee remittances to DSI should Agreements, Deposit Materials and notices to be addressed to: DSI should be addressed to (select location): [ ] Attn: Client Services DSI Technology Escrow Services, Inc. 9265 Sky Park Court, Suite 202 PO Box 45156 San Diego, CA 92123 San Francisco, CA 94145-0156 Telephone: (858) 499-1600 Facsimile: (858) 694-1919 E-mail: clientservices@dsiescrow.com or [ ] Attn: Client Services 2100 Norcross Parkway, Suite 150 Norcross, GA 30071 Telephone: 770-239-9200 Facsimile: 770-239-9201 Date:__________________________________ E-mail: clientservices@dsiescrow.com
28 EXECUTION COPY Exhibit D Maintenance Support and Training A. Software Maintenance, Severity and Error Correction. GoAmerica shall provide support and maintenance and correct Errors reported in writing by EarthLink within the Correction Period applicable to each severity level set forth below. GoAmerica shall be responsible for correcting such Errors by issuing either: (a) correction information, such as correction or corrected Documentation, if the Error is reasonably classified as an Error in the Documentation; (b) Maintenance Modifications, if the Error resides in the operation of the code of the Enhancement Release itself; or (c) if Maintenance Modifications are to be provided but are not readily available or will not be issued within ten (10) business days after receipt of the Error report, a temporary fix or work around, until appropriate Maintenance Modifications can be provided. GoAmerica shall prioritize its overall efforts according to the severity level of the Error stipulated by EarthLink. When reporting Errors and requesting Error Correction under this Section, EarthLink shall stipulate the severity level it has associated with the Error, using the following severity level guidelines, and shall in such case provide documentation of a sufficient technical level so that the Error can be reproduced and verified by GoAmerica, and so that GoAmerica can estimate the time and resources required to resolve the Error. The response periods set forth in Severity Levels A through D below shall not be deemed to commence until GoAmerica is in receipt of the report of the Error from EarthLink and EarthLink demonstrates that the Error can be replicated by GoAmerica. The severity levels are: Severity Level A: Critical. The Error prevents or seriously impairs the performance of substantially all major functions of the Licensed Software or Enhancement Release. "Correction Period" means a response to EarthLink acknowledging the Error and reporting the projected time of Error Correction within one (1) business day of receipt of the report from EarthLink and provide Error Correction within six (6) business days. Severity Level B: Severe Impact. The Error prevents or seriously impairs the performance of a major function of the Licensed Software or Enhancement Release. "Correction Period" means a response to EarthLink acknowledging the Error and reporting the projected time of Error Correction within two (2) business days of receipt of the report from EarthLink and provide Error Correction within seven (7) business days. Severity Level C: Degraded Operation. The Error impairs the performance of a minor function of the Licensed Software or Enhancement Release. "Correction Period" means a response to EarthLink acknowledging its Error and reporting the projected time of Error Correction within five (5) business days of receipt of the report from EarthLink and provide Error Correction within ten (10) business days. Severity Level D: Minor Impact. The Error is a minor problem such as a problem in a rarely used function, or a problem with an easy and effective workaround, or a cosmetic problem. "Correction Period" means a response to EarthLink acknowledging the Error and reporting the projected time of Error Correction within ten (10) business days of receipt of 29 the report from EarthLink and provide a work around within thirty (30) business days and Error Correction in the next scheduled release. A. Response Exceptions. In the event that any performance obligation of GoAmerica of an Enhancement Release set forth above is dependent upon an action, consent or approval of EarthLink and the performance of such obligation is delayed by such dependency, GoAmerica shall use and exert its commercially reasonable best efforts to remove such dependency or overcome such delay in order to meet such performance obligation within the time frames provided but in any event as soon as practical after such dependency is removed or delay is overcome. GoAmerica shall not be held liable under this Agreement or be considered in default under this Agreement for failure to comply with its performance obligations hereof if the condition described above occurs and GoAmerica complies with its obligations hereof. B. Maintenance Fees. GoAmerica shall provide the Maintenance Services described herein [**] for a one (1) year period following the Effective Date. Thereafter, GoAmerica shall provide the Maintenance Services in exchange for the Maintenance Fees in the Technology Development Agreement. In the event the Technology Development Agreement has been terminated, EarthLink shall pay an annual Maintenance Fees of [**] Percent ([**]%) of the last Maintenance Fees agreed to under the Technology Development Agreement. C. Service Level Agreements. GoAmerica agrees to provide its products and services in accordance with mutually agreed upon Service Level Agreements which shall be attached hereto as Schedule I to Exhibit D. D. As part of the Maintenance Services, GoAmerica shall provide to EarthLink, at a minimum, annual Updates to the Licensed Software, Error Corrections, Maintenance Modifications, improvements to existing features and the like. Updates shall include appropriate changes to the Documentation for the Licensed Software. Updates shall be governed by the licenses granted in this Agreement. As part of the Maintenance Fee, GoAmerica will provide to EarthLink all Updates at no additional charge. GoAmerica agrees that all Updates, specifically general release bug fixes, updates, Maintenance Modifications, Enhancements and upgrades to the Licensed Software, are included in the annual Maintenance Fee at no additional cost to EarthLink. E. At a mutually agreed upon time and location, GoAmerica shall provide Earthlink's staff with one technical training session no more often than every six (6) months with respect to the Licensed Software at no charge other than Earthlink's payment of or reimbursement for all reasonable travel and out-of-pocket expenses incurred by GoAmerica's staff in connection with the provision of such session. Thereafter, from time to time during the Term, at Earthlink's request, GoAmerica shall provide additional technical training with respect to the Licensed Software as mutually agreed upon by the Parties. EarthLink shall pay GoAmerica [**] Dollars ($[**]) per day for any additional training requested by EarthLink. F. Earthlink will provide certain support directly to end users that use the Licensed Software, and will deliver all Licensed Software to end users. Earthlink will instruct End Users to contact Earthlink for all support matters. Earthlink will perform problem determination procedures, report the problem to GoAmerica and be responsible for providing remedies to end users. 30 GoAmerica shall have no obligation to provide support directly to Earthlink's end users that utilize the Licensed Software. G. In performing the Maintenance Services, GoAmerica will assign personnel with the required skills, training and experience to perform the duties, responsibilities and functions assigned to such personnel. H. Correction of Errors shall be furnished by GoAmerica in the form and media reasonably selected by Earthlink including corrections in the form of documentation and/or such correction as shall remedy such errors so that the Licensed Software is functional substantially in accordance with its Documentation. 31 EXECUTION COPY Exhibit E Service Fees I. Sublicensees. EarthLink shall pay the following monthly Service Fees to GoAmerica for any Licensed Software sublicensed by EarthLink: [**] per month. II. End-Users. EarthLink shall pay the following monthly Service Fees to GoAmerica for any Licensed Software used by EarthLink's end users: [**] per month. III. Service Fees Pricing. The Parties agree to review and negotiate in good faith the Service Fees pricing terms provided hereunder from time to time, but no more than once annually, to reflect changing market conditions. The Parties will increase or decrease the Service Fees to reflect current market conditions. 32 -----END PRIVACY-ENHANCED MESSAGE-----