Service Agreement For Network Solutions Company

Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.


SERVICE AGREEMENT


This agreement (the "Agreement") is made as of October 1, 2000 ("Effective Date"), by and between GOAMERICA COMMUNICATIONS CORPORATION, a Delaware corporation ("GoAmerica"), and the Personal Network Solutions Company division of SONY ELECTRONICS INC., a Delaware corporation ("Sony").


RECITALS


WHEREAS, Sony and GoAmerica desire to enter, into business relationship in which GoAmerica will support the creation, marketing and operation of a Sony-branded wireless service for use with handheld and notebook computer mobile devices in the United States, as well as provisioning and distribution of related wireless modem hardware;


NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and obligations hereinafter set forth, the parties hereto agree as follows:


1. DEFINITIONS


In addition to the terms defined in the introductory paragraphs and elsewhere in this Agreement, as used herein, the following terms (and their respective plurals) shall have the meanings given to them:


1.1 "Affiliate" when used in reference to any person or entity, shall mean any
person or entity that, directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with
the entity in question. For purposes of this definition, "control"
(including with correlative meaning, the terms "controlled by" and "under
common control with"), as used with respect to an entity, means the
possession, directly or indirectly, of the power to direct or cause the
direction of management policies of such entity, such power to be evidenced
by either ownership of the majority of the outstanding securities (on a
fully-diluted basis) of the entity in question or possession of a majority
of the voting rights with respect to the outstanding securities of such
entity.


1.2 "Application Programming Interface" or "API" means a programming interface
containing the ability to access and utilize specific API enabled functions
of a given software program.


1 2 1.3 "Beta Launch Date" means the date prior to the Launch Date on which
elements of the Sony Service sufficient for Sony to practically test all
material functionality of the Sony Service will be first available for Sony
access and testing.


1.4 "Client Device" means the combination of a Wireless Modem and the personal
computer, digital camera or other device to which it may be connected or of
which it is a part (including any Handheld as defined in Section 1.14
below, or any Sony Notebook as defined in Section 1.19), which combination
may be used for authorized access to the Sony Service.


1.5 "Connectivity Service" means those wireless network services listed in
Exhibit A (as updated from time to time by mutual agreement of the parties)
that are provided by GoAmerica as part of the Sony Service, including any
land line usage incidental thereto that is provided by GoAmerica at no
separate charge as a part of such wireless network services.


1.6 "Content" means any work of authorship within the scope of Section 102 of
the United States Copyright Act (or similar successor provision) in a
digital format that can be accessed, used by or provided to a User through
use of the Sony Service.


1.7 "Feature" means a particular service or application provided by a GoAmerica
Provider or a Sony Provider that may be accessed or used through the Sony
Service, such as a stock trading or wireless banking application.


1.8 "Function" means an operation or capability of the Sony Service defined in
software which resides on Client Devices or the GoAmerica Facilities.


1.9 "GoAmerica Content" means Content or Features supplied by GoAmerica that
Users may receive, access or use as part of the Sony Service.


1.10 "GoAmerica Provider" means a third-party publisher, distributor or
application service provider who has entered into a written agreement with
GoAmerica that authorizes GoAmerica to enable such third party's Content or
Features to be accessed or used by Users through the Sony Service.


1.11 "GoAmerica Facilities" means the servers operated by or for GoAmerica to
provide the Sony Service.


1.12 "GoAmerica Service" means GoAmerica's own basic branded wireless and
internet access, personalization and portal service, excluding services or
features for which there is a separate additional charge to end users. The
current base feature set of the GoAmerica Service is set forth on Exhibit D
attached hereto.


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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.


1.13 "GoAmerica Technology" means technology used or provided by GoAmerica to
support the Sony Service, including all software tools, hardware designs,
algorithms, software (in source and object forms), architecture, and
documentation (both printed and electronic), network designs, know-how,
trade secrets and any related Intellectual Property Rights throughout the
world (whether owned by GoAmerica or licensed to GoAmerica from a third
party) and also including any derivatives, inventions, improvements,
discoveries, enhancements or extensions of GoAmerica Technology made,
conceived, reduced to practice, or developed during the term of this
Agreement by GoAmerica.


1.14 "Handheld" means handheld personal digital assistant products marketed by
Sony in the Territory during the Term.


1.15 "Integration Technologies" means the GoAmerica integration technologies
provided by GoAmerica for Sony and Sony Group entities to link and
integrate Sony and Sony Group hardware and online properties to the Sony
Service including all API technologies and smart agent technologies, as
further described in Exhibit B attached hereto.


1.16 "Intellectual Property" or "IP" means any patents, patent rights,
trademarks, service marks, registered designs, applications for any of the
foregoing, copyright, know-how, trade secrets, unregistered design rights,
confidential information, moral rights and any other similar protected
rights in any country and "Intellectual Property Right" has a corresponding
meaning.


1.17 "Jointly Developed Technology" means any technology that (i) is developed
jointly by both parties during the Term; and (ii) is based on or derived
from the collaboration that occurs in furtherance of this Agreement;
provided, however, that such Jointly Developed Technology remains subject
to the rights of either party and any third party in any underlying
Intellectual Property.


1.18 "Launch Date" means the date on which the Sony Service is publicly
announced and first becomes fully operational for public use and a minimum
of 100 Wireless Modems are available for end-user distribution, presently
anticipated to be [**].


1.19 "Sony Notebook" means any model of Sony branded laptop computers which
Sony, after reasonable technical investigation with the cooperation and
support of GoAmerica, advises GoAmerica in writing are compatible with the
Wireless Modems and the Sony Service.


1.20 "Portal Service" means the server-based content and functionality portal
operated by GoAmerica to perform certain addressing, switching and routing
functions of the Sony Service, including personalization features.


1.21 "Sony Content" means Content or Features supplied by Sony that may be
accessed or used as part of the Sony Service.


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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.


1.22 "Sony Provider" means a member of the Sony Group or third-party application
service provider or publisher or distributor of Content contracted by Sony
who has authorized GoAmerica or Sony to enable such third party's Content
or Features to be accessed, used by or provided to Users through the Sony
Service.


1.23 "Sony Functionality" means wireless Internet service Features or Functions
licensed to or developed by or for the Sony Group and provided to GoAmerica
solely for GoAmerica implementation or integration with the GoAmerica
Technology to constitute the Sony Service.


1.24 "Sony Group" means Sony Electronics Inc. and all of its Affiliates
world-wide.


1.25 "Sony Home Deck" means the first screen of the Sony User Interface that
appears to a User on a Client Device upon connection to the Sony Service.


1.26 "Sony Service" means the wireless internet access, personalization page and
content portal service provided by GoAmerica to Users as an integrated
service offering on behalf of Sony as provided in the Service Description
(defined in Section 2.1 below) which incorporates the Sony Functionality
and Sony Content and the GoAmerica Technology and GoAmerica Content,
Connectivity Service (as defined in Section 1.5) and Portal Service (as
defined in Section 1.20).


1.27 "Sony Service Website" means one or more sites on the World Wide Web
identified by the Universal Resource Locator ("URL") as Sony may from time
to time determine) that are hosted and operated by GoAmerica as part of the
Sony Service to provide a site through which Users may activate or
personalize service, order Wireless Modems, make service inquiries and
perform similar tasks.


1.28 "Sony User Interface" shall have the meaning stated in Section 2.6.


1.29 "Subscription" means the activation on the GoAmerica Facilities, pursuant
to a service agreement between GoAmerica and a User, of an individual
Client Device to enable use of the Sony Service, provided that (i) such
Client Device remains activated for three (3) consecutive months after
initial activation ("Start Up Period") and (ii) that GoAmerica is not
making such activation to enable use of the Sony Service [**]. If a Client
Device is activated as a replacement for a previously activated Client
Device, then the initial activation and the replacement shall be counted as
a single Subscription and the duration of each activation shall be added
together to determine when the Start Up Period has been met.


1.30 "Term" shall have the meaning stated in Section 12.1.


1.31 "Territory" means the United States and all territories and possessions,
and any additional countries or geographic areas that the parties may from
time to time agree in writing to include in such defined term.


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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.


1.32 "User Content" means all Content provided to the Sony Service by Users, or
used or accessed by Users through the Sony Service, other than Sony Content
and GoAmerica Content.


1.33 "User Data" means the compilation of data collected by the parties from
Users or prospective Users of the Sony Service. Such data may include,
without limitation, the names, addresses, telephone and fax numbers, e-mail
addresses and credit information and impression/use/commerce data related
to the extent related to specific a User or prospective User. "User Data"
does not include general statistical information collected by either party
concerning the use of the Sony Service, provided such general statistical
information cannot be searched or analyzed to identify particular
information concerning a specific User or prospective User.


1.34 "User" means a person or entity who uses the Sony Service.


1.35 "Wireless Modem" means the wireless modems to be developed, provisioned,
distributed and supported by GoAmerica pursuant to this Agreement.


2. DEVELOPMENT/OPERATION OF THE SONY SERVICE


2.1 Service Description. GoAmerica and Sony shall cooperate to develop, market
and provide the Sony Service in the Territory. Exhibit C attached hereto
("Service Description") describes the Features, Content and Functions that
will initially be included in the Sony Service. Sony, at any time in its
sole discretion, may propose modifications to the Sony Service to add,
delete or modify Features, Functions, Content and supported products. Sony
shall propose such modifications by providing GoAmerica a revised Service
Description. Subject to GoAmerica's obligations under Section 2.10 below,
GoAmerica may reject such proposed revision in whole or in part by giving
Sony written notice within [**] days, provided that GoAmerica may not
reject Sony proposed deletions unless Sony has earlier contractually agreed
to support the Feature, Function or Content proposed by Sony to be deleted.
GoAmerica shall provide the Sony Service with the same degree of quality
and care and to the same performance levels as GoAmerica provides the
GoAmerica Service generally to GoAmerica's own users. GoAmerica's
implementation of modifications to the Sony Service shall have the same
priority as GoAmerica modification of the GoAmerica Service, provided that
for quality assurance and technical implementation staging reasons
GoAmerica may delay Sony implementation for up to [**] days on a
nondiscriminatory basis, so long as there is no competitive impact to the
Sony Service. Sony shall not be required to implement or approve any
modifications to the Sony Service proposed by GoAmerica. While the Sony
Service is initially intended to be marketed to users of Handhelds and Sony
Notebooks, if Sony elects to expand the scope of the Sony Service to target
users of other Sony and third-party equipment, then Sony and GoAmerica
shall mutually agree in writing upon any technical implementation and
support issues that either party, in its reasonable judgment, determines
must be considered and resolved in order for the Sony Services to
accommodate such expansion of the target market.


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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.


2.2 Management Team. The parties shall establish a team (the "Management Team")
comprised of one (1) individual from each of Sony and GoAmerica. The
members of the Management Team will serve as the parties' principal point
of contact for matters relating to the performance of this Agreement. All
of the members of the Management Team shall participate at least once each
month (once each week prior to the Launch Date) in a telephone conference
to review the development, implementation and ongoing performance of the
Sony Service.


2.3 Pricing. The Sony Service shall be made available for offer by GoAmerica at
a price no higher than $[**] for unlimited wireless data access using CDPD
Connectivity Services in connection with a Handheld, $[**] using CDPD
Connectivity Services in connection with a Sony Notebook, $[**] using CDPD
Connectivity Services in connection with a Handheld/Sony Notebook
combination, $[**] using Ricochet Connectivity Services in connection with
a Handheld or Sony Notebook and $[**] using Ricochet Connectivity Services
in connection with a Handheld/Sony Notebook combination in those GoAmerica
CDPD and Ricochet coverage areas as detailed on the general GoAmerica
web-site.


2.4 Provisioning, Fulfillment and Support. GoAmerica will be responsible for
providing Connectivity Services on the networks listed in the Service
Description, implementing, hosting, operating and maintaining the Portal
Service, providing fulfillment services for Wireless Modems, provisioning
of new Users to the Sony Service, and providing customer support. Specific
program details are set forth in Exhibit C attached hereto (the "Service
Description"). Revisions and updates to the Program Description shall be
made in writing as mutually agreed by the parties.


2.5 Manuals and Documentation. At its expense, GoAmerica will develop, author,
and maintain user manuals and documentation for the Sony Service including
guides, wizards, online and offline documentation and related support
scripting (collectively, "Documentation"). The Documentation shall be
comparable in scope and content to the user manuals and documentation
GoAmerica provides to users of the GoAmerica Service. Each party shall have
the right of approval of the Documentation. Sony shall have the right to
determine and/or approve the graphic design thereof, including branding and
the use of Sony trademarks, as provided in Section 3 of this Agreement.


2.6 Content Development, Sourcing and Integration. Sony will develop and
specify to GoAmerica a technically practicable Sony "look and feel" for the
Sony Service, including content GUI, menu hierarchy, fonts and logos ("Sony
User Interface"). [**], GoAmerica will incorporate the Sony User Interface
into the Sony Service. Sony shall have the right, without obligation, to
provide its own Features, Functions and Content and to develop content
arrangements with Sony Providers, either for access to content, placement
agreements, use of logos, advertising agreements and other arrangements
which GoAmerica will, [**] incorporate into the Sony Service. Unless
otherwise agreed, Sony Content, the Sony User Interface and any Features or
Function provided by Sony shall be used exclusively for the Sony Service.
The appropriate Sony Group member retains all rights to such features and
may at its option elect to allow GoAmerica to offer it throughout
GoAmerica's network.


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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.


2.7 Connectivity Service. Unless otherwise agreed by Sony in circumstances
where Sony procures Connectivity Service directly from wireless carriers,
GoAmerica shall be responsible for procuring Connectivity Services from the
appropriate wireless carriers in order to provide the Sony Service in those
areas of the Territory where such carriers provide coverage. Except with
respect to Connectivity Services that Sony procures directly from wireless
carriers, GoAmerica shall be solely responsible for all payments to such
carriers for access time or other carrier products or services included
within the Sony Service. Sony shall cooperate with GoAmerica to ensure that
the Sony Service meets any technical requirements or usage policies of such
carriers. To the extent its carriers enable GoAmerica to do so, GoAmerica
shall manage Connectivity Service provisioning so that GoAmerica will be
the only interface to and from a customer and a customer will not need to
interact directly with GoAmerica's wireless carriers to provision service;
provided, however, that even in instances where interaction with
GoAmerica's wireless carriers to provision service is necessary, GoAmerica
shall facilitate coordination with such carriers and assist customers in
any issues with such carriers.


2.8 Launch Schedule. The Beta Launch Date is scheduled for [**] and the Launch
Date (including supply of at least [**] devices) for [**]. Changes to such
schedule shall be made only with Sony's written approval.


2.9 Customer, Sales and Technical Support. Upon the Launch Date, GoAmerica
shall provide customer, sales and technical support ("Support Service") for
the Sony Service twenty-four (24) hours daily and seven (7) days per week.
Support Service shall be accessible to Users via toll-free telephone, and
all incoming support requests shall generally be received by a live
operator and not by an automated answering service. In order to remain
consistent with the terms of Section 3.1 regarding branding of the Sony
Service, Support Service operators shall identify the Support Service to
all callers as determined by Sony, using support service scripts similar to
those used by Sony itself or otherwise approved by Sony. In addition, all
written or electronic communications with Users concerning the Support
Service shall be branded or identified as determined by Sony pursuant to
Section 3.1. Sony will provide to GoAmerica information required for
GoAmerica to effect the "soft hand-off" to Sony, Sony Affiliates or third
parties designated by Sony of inquiries made to the Support Service that
relate to issues other than the Sony Service and the Wireless Modems,
including but not limited to hardware and software issues concerning Sony
products such as Handhelds or Sony Notebooks and third-party software not
supplied by GoAmerica. GoAmerica will provide to Sony information required
for Sony, Sony Affiliates or third-party suppliers to Sony to effect the
"soft hand-off"of inquiries received that relate to the Sony Service or the
Wireless Modems. Sony shall have the right to approve all GoAmerica call
scripts and establish reasonable minimum standards for GoAmerica's
representative training. GoAmerica shall provide a special toll-free number
for Sony's immediate around the clock access to GoAmerica technical support
for use in escalation situations and other situations requiring immediate
GoAmerica support of Sony. Minimum guidelines for service


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Confidential Materials omitted and field separately with the Securities and
Exchange Commission. Asterisks denote omissions.


metrics are set forth on Exhibit E attached hereto. GoAmerica shall provide
reporting to Sony of service metrics in the form provided in Exhibit E
attached hereto on a monthly basis. GoAmerica shall provide training to
Sony customer service and sales/marketing personnel at GoAmerica's cost,
including required travel to Sony facilities in the Continental United
States, sufficient for such personnel to properly represent the Sony
Service to Sony's reasonable satisfaction.


2.10 Service Enhancements. GoAmerica shall use commercially reasonable efforts
to maintain and enhance the Features, Functions, Content quality, and value
of the Sony Service to compete effectively with other similar commercially
available wireless services targeted to handheld and notebook category
devices. GoAmerica and Sony shall meet regularly to review GoAmerica's
product and service development plans and schedules. GoAmerica shall give
all commercially reasonable consideration to including GoAmerica's plans
for product and service development as a high priority in all enhancements
that Sony proposes that would benefit both parties and merit such priority.
At Sony's option, subject to the terms, conditions, license restrictions or
limitations of any applicable agreements GoAmerica may have with any third
party, all of which shall be nondiscriminatory as to Sony, GoAmerica shall
include in the Sony Service any additional features and functions of the
GoAmerica Service that GoAmerica makes available to users of the GoAmerica
Service during the Term. Notwithstanding the above, at Sony's option,[**],
GoAmerica shall include in the Sony Service any additional features and
functions of the GoAmerica Service marketed by GoAmerica as part of its
"basic" or "standard" service.


2.11 Territory. The Sony Service shall be made available only in the Territory,
provided, however, that Sony may (i) from time to time conduct
demonstrations of the Sony Service outside the Territory at trade shows or
other similar events, (ii) make incidental distribution of materials
promoting the Sony Service, so long as Sony clearly indicates that the Sony
Service is not available outside the Territory. Sony acknowledges that
Connectivity Services provided by GoAmerica as part of the Sony Service may
not be available for any demonstration Sony desires to conduct outside the
Territory and that GoAmerica shall have no obligation to provide or procure
Connectivity Services outside the Territory for any purpose.


3. BRANDING AND TRADEMARKS


3.1 Sony Branding. Sony shall determine, in its sole discretion, the Sony
Service's branding, logo, trademark and domain name address.


3.2 GoAmerica and Other Branding. GoAmerica's brand, trademark or logo will be
presented on the Sony Service as "Towered by GoAmerica" below the fold.
Branding on collateral marketing and advertising will be consistent with
such presentation. Branding of other third-party technology, content or
connectivity providers shall be exclusively controlled by Sony.


8 9 3.3 Control of Branding. All uses of trademarks, logos or other branding on the
Sony Service is subject to the direction and control of the Sony Design
Center and Sony's Trademark & Brand Identity Committee.


3.4 Sony Trademarks. Sony shall have and retain sole ownership of any and all
Sony trademarks, trade names, logos, and service marks used in connection
with the Sony Service including the goodwill pertaining thereto. Use by
GoAmerica of any Sony trademarks or service marks must specifically be
approved by Sony in writing prior to use by GoAmerica. GoAmerica shall not
use any trademark or trade name of Sony or any word, symbol or design
confusingly similar thereto, as part of its corporate name, or as part of
the name of any product of GoAmerica. GoAmerica shall not remove or alter
any of the Sony trademarks or service marks, including proprietary or
copyright notices, on the Sony GUI, the Sony Services, or related materials
without Sony's prior written consent. To protect and preserve the goodwill
and image of Sony, GoAmerica shall (1) conduct business in a manner that
reflects favorably at all times on the products, services, and reputation
of Sony; (2) avoid deceptive, misleading, or unethical practices that are
or might be detrimental to Sony or the products for the public, including
any disparagement of Sony or the Sony Services; (3) make no false or
misleading representations with regard to Sony; (4) refrain from publishing
or employing any misleading or deceptive advertising materials; and (5)
refrain, unless p ...