Ricochet
RICOCHET(TM) CHANNEL PARTNER AGREEMENT
FOR
AUTHORIZED SERVICE PROVIDERS
THIS RICOCHET(TM) CHANNEL PARTNER AGREEMENT FOR AUTHORIZED SERVICE
PROVIDERS (THE "AGREEMENT") is made as of the 1ST DAY OF SEPTEMBER, 2000 (the
"Effective Date") by and between METRICOM, INC., a Delaware corporation
("METRICOM"), and GOAMERICA COMMUNICATIONS CORPORATION, a Delaware corporation
("AUTHORIZED SERVICE PROVIDER" or "ASP") with its principal offices at 401
Hackensack Avenue, Hackensack, New Jersey 07601 (together, the "Parties").
RECITALS
WHEREAS, Metricom has developed a proprietary wireless, mobile Internet
access service that Metricom intends to market under the name Ricochet(TM) (the
"SERVICE") as more fully defined and attached as EXHIBIT A hereto; and
WHEREAS, Metricom desires to appoint ASP as a non-exclusive reseller of the
Service in the Territory (as hereinafter defined), and ASP wishes to accept such
appointment, all pursuant to the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises,
representations and warranties set forth herein, the parties hereby agree as
follows:
AGREEMENT
1. DEFINITIONS. Unless the context clearly requires otherwise, each of the
following terms, when used herein with initial capitals, shall have the meaning
set forth for such term below:
1.1 "AFFILIATE" means, when used with respect to one of the Parties hereto,
any legal entity or entities controlling, controlled by, or under common control
with a party to this Agreement. The term "control" as used in the immediately
preceding sentence means the right to the exercise, directly or indirectly, of
more than fifty percent (50%) of the voting rights attributable to the shares,
partnership interests, membership shares, or other similar evidences of
ownership of such controlled party.
1.2 "ASP SUBSCRIBER" means a Subscriber who has been registered for the
Service by the ASP or by any ASP Reseller in accordance with this Agreement.
1.3 "GSA" means a Geographical Service Area defined as a city, together
with nearby communities that have a high degree of economic and social
integration with that city, including suburban areas generally considered part
of the same metropolitan area. The population covered within each GSA will be at
least as large as set forth on EXHIBIT B.
1.4 "MARKET LAUNCH SCHEDULE" means the schedule according to which Metricom
intends to deploy the network through which Metricom will provide the Service.
Rev. 083000 GoAmerica Authorized Service Provider Agreement Page 1 of 41
Metricom Initials: GoAmerica Initials:
------------ Confidential & Proprietary ------------
Not for use or disclosure outside of Metricom or
Contractor except under written permission
2
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
1.5 "MARKS" means trademarks, service marks, logos, and trade names,
whether or not registered.
1.6 "NETWORK COVERED AREA" means that portion of the GSA to be covered by
the network (including the square miles set forth in the Market Launch
Schedule).
1.7 "NON-COMPETE CUSTOMERS" means [**]., or their respective affiliates.
1.8 "PROMOTIONAL MATERIALS" means promotional publications, documents,
software, equipment or other marketing collateral prepared or disseminated by
Metricom in connection with its efforts to promote the Service to Subscribers.
1.9 "RESELLER" means any third party to whom ASP has granted the right to
resell the Service to end users pursuant to SECTION 3.2.
1.10 "SERVICE YEAR" means a twelve-month period commencing upon the date
that the Service is first ready for commercial operation in Phase I GSAs as
determined by Metricom and communicated in writing to ASP and each anniversary
thereof.
1.11 "SUBSCRIBER" means a single, individual end user of the Service.
1.12 "SUBSCRIBER DOCUMENTATION" means documentation prepared and
disseminated by Metricom (in hard copy, electronic and/or online form) for use
by Subscribers and ASP's sales and support organizations regarding the proper
installation, set-up, troubleshooting and operation of the Service.
1.13 "TERRITORY" means the fifty (50) states of the United States of
America and Canada.
1.14 "TOTAL NET CUMULATIVE SUBSCRIBERS (TNCS)" means the total number of
ASP Subscribers registered in accordance with this Agreement as of any given
date, less the number of ASP Subscribers that have canceled their subscriptions
to the Service prior to such date.
1.15 "UNRESTRICTED ACCESS" means the ability to access and use the Service
anywhere in the Territory where the Service is then-currently available.
2. RESALE OF THE SERVICE.
2.1 APPOINTMENT. Metricom hereby appoints ASP, and ASP hereby accepts
appointment, as Metricom's non-exclusive reseller of the Service in the
Territory. In connection therewith, ASP will identify, register, and provide
sales support and customer support to ASP Subscribers in accordance with this
Agreement.
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Metricom Initials: GoAmerica Initials:
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Not for use or disclosure outside of Metricom or
Contractor except under written permission
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2.2 NATURE OF APPOINTMENT. ASP understands that, subject to SECTION 2.3,
this appointment is non-exclusive and that Metricom will establish other means
of distribution, appoint other distributors and resellers, and/or use its own
direct sales personnel to identify, register and support Subscribers and to
promote the Service. Similarly, Metricom understands that ASP may market, sell
and distribute services similar or identical to the Service, whether provided
directly by ASP or a third party.
2.3 LIMITED NON-COMPETE. Notwithstanding the non-exclusive nature of this
Agreement, ASP is expressly prohibited from directly or indirectly selling the
Service to Non-Compete Customers unless ASP receives written authorization from
Metricom expressly granting permission to do so.
2.4 METRICOM RIGHTS. Nothing in this Agreement will be construed in any way
to limit Metricom's right to do either or both of the following at any time in
Metricom's sole discretion: (i) reject or terminate the subscription of any ASP
Subscriber that is in violation of the applicable terms of service and/or (ii)
subject to SECTION 2.2, enter into arrangements of any kind whatsoever with
other parties regarding the marketing and distribution of the Service.
2.5 ASP RIGHTS. Nothing in this Agreement will be construed in any way to
limit ASP's right to enter into similar or dissimilar contracts with third
parties regarding similar services.
2.6 ADDITIONAL SERVICES. Metricom may develop and offer at its sole
discretion for resale by ASP, other services that enhance or complement the
Service. ASP will have the option, but not the obligation, to buy any additional
services from Metricom at prices and terms to be negotiated in good faith by the
Parties.
3. DUTIES OF ASP.
ASP will have the following duties during the term of this Agreement:
3.1 PROMOTION AND SALES. ASP will use commercially reasonable efforts to
actively endorse, promote and sell the Service (including subscription renewals)
in the Territory and will devote personnel and resources to effectively promote
the Service as contemplated herein. ASP will identify and register ASP
Subscribers in accordance with this Agreement. ASP will not specifically direct
promotional activities at existing Subscribers of Metricom or another authorized
service provider of Metricom so as to encourage them to discontinue their
then-current subscriptions and become ASP Subscribers. ASP will perform its
duties hereunder in a diligent and businesslike manner and will refrain from any
activity or action that would reasonably be expected to damage the reputation of
Metricom or the Service.
3.2 ASP RESELLERS. ASP may grant to third parties the right to resell the
Service ("RESELLER") to end users only, provided that (i) ASP will retain the
same obligations with regard to ASP Subscribers registered by Resellers that ASP
has with respect to ASP Subscribers registered by ASP under this Agreement and
(ii) ASP shall remain fully liable and accountable for any and all acts or
omissions of any such Resellers and of persons either directly or indirectly
employed by Reseller.
3.3 TERMS OF USE. ASP shall, and shall cause its Resellers to, enter into a
written agreement with each of their respective Subscribers which is applicable
to each ASP Subscriber's use of the Service, which includes terms substantially
similar to and at least as restrictive as those set forth on EXHIBIT D, subject
to changes mutually agreed to in writing by ASP and Metricom, and provides at
least as much protection of Metricom's proprietary rights (including Metricom's
intellectual property rights) as this Agreement. At Metricom's request, ASP
agrees that it shall immediately terminate the subscription of any ASP
Subscriber who has breached its subscriber agreement with ASP.
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Metricom Initials: GoAmerica Initials:
------------ Confidential & Proprietary ------------
Not for use or disclosure outside of Metricom or
Contractor except under written permission
4
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
3.4 MATERIALS FOR SUBSCRIBERS.
(A) PROMOTIONAL MATERIALS. To support ASP's sales efforts, Metricom
shall prepare and disseminate printed or electronic copies of the Promotional
Materials. Metricom reserves the right to limit the volume of material available
without charge. Metricom grants the non-exclusive rights to reproduce,
distribute and display any materials provided by Metricom in electronic format
provided that ASP will cause all copies of the Promotional Material to contain
the same and all copyright or proprietary legends contained in the original
Promotional Material. ASP will have the option to distribute to prospective
Subscribers any Promotional Materials provided by Metricom to ASP. All
Promotional Materials prepared by Metricom will be consistent with industry
standards. Metricom requires that ASP and ASP's Resellers discontinue
reproduction, distribution and display of any Promotional Materials upon written
notice from Metricom of any change rendering the Promotional Materials obsolete.
Metricom will use its reasonable efforts to provide ASP [**] written notice of
such change and shall reimburse ASP for the cost of any Promotional Materials
purchased by ASP from Metricom within [**] prior to the date of such notice.
(B) SUBSCRIBER DOCUMENTATION. Metricom will prepare and deliver to
ASP the Subscriber Documentation. ASP will make available the then-current
version of the Subscriber Documentation (as identified by Metricom) to all ASP
Subscribers. Metricom hereby grants ASP a nonexclusive, nontransferable, license
without right of sublicense in the Territory, to (i) reproduce, distribute and
display the Subscriber Documentation in connection with its obligations under
this Agreement and (ii) modify the Subscriber Documentation solely as necessary
to incorporate the Subscriber Documentation into documentation prepared by ASP
for ASP Subscribers ("ASP SUBSCRIBER Documentation"), provided that ASP does not
alter or modify any substantive provision of the Subscriber Documentation
without the prior written consent of Metricom. Notwithstanding the foregoing,
ASP may sublicense to ASP's Resellers a nonexclusive, nontransferable, license
in the Territory to reproduce, distribute and display the Subscriber
Documentation and ASP Subscriber Documentation to ASP Subscribers. ASP shall
cause all copies of the Subscriber Documentation or modified version thereof
pursuant to this SECTION 3.3(b), to contain the same and all copyright or
proprietary legends contained in the original Subscriber Documentation.
(C) OWNERSHIP AND INTELLECTUAL PROPERTY. ASP and ASP Resellers
acknowledge and agree that Metricom is and shall remain the sole owner of the
Promotional Material, Subscriber Documentation and all Marks contained in such
materials except to the extent that ASP Subscriber Documentation contains any
ASP or ASP Reseller Marks, which shall remain the exclusive property of ASP or
ASP Reseller, respectively. Nothing herein will be construed as granting to ASP
or any Reseller any proprietary rights (including any intellectual property
rights) to any Promotional Materials, Subscriber Documentation or any Marks
therein.
3.5 BILLING; CUSTOMER BILLING INFORMATION. ASP shall provide customer
billing and collection services for ASP Subscribers.
(A) ASP shall provide to Metricom, on a monthly basis, the billing
address, including Subscriber name and nine-digit zip code, for each ASP
Subscriber and any Subscriber billing address changes. Billing address changes,
along with the previous address, shall be clearly identified as such. Where a
Reseller represents the ASP, the ASP will set up a reasonable procedure to
capture and transmit billing information and billing address changes on a
monthly basis.
3.6 NO OTHER WARRANTIES. ASP is not entitled to any representations,
warranties or guarantees concerning the Service other than the warranties
provided by Metricom to ASP under this Agreement.
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Metricom Initials: GoAmerica Initials:
------------ Confidential & Proprietary ------------
Not for use or disclosure outside of Metricom or
Contractor except under written permission
5
ASP will not, without Metricom's prior express written consent, make any
representations, warranties or guarantees concerning the Service other than the
warranties provided by Metricom to ASP hereunder.
3.7 CUSTOMER SUPPORT. ASP or the applicable Reseller is responsible for all
interaction with its prospects and Subscribers which shall include, but not be
limited to, the following:
(A) SALES SUPPORT. ASP or the applicable Reseller will provide sales
support to ASP Subscribers in a diligent manner consistent with industry
standards, which will include the following: (i) responding to questions from
ASP Subscribers about the features and prices of the Service; (ii) introducing
ASP Subscribers to new features of the Service and new services as such become
available; (iii) producing and processing all ASP Subscriber and prospective
Subscriber orders; (iv) customer billing issues; (v) account setup and
maintenance; and (vi) providing such other sales support as Metricom may, from
time to time, reasonably request.
(B) SERVICE SUPPORT. ASP or the applicable Reseller will, in a
diligent manner consistent with industry standards, provide Level I Service
Support, as defined in EXHIBIT C attached hereto, to ASP Subscribers. If ASP or
the applicable Reseller is not able to sufficiently address an ASP Subscriber's
support request because of its technical nature, ASP may request assistance from
the Metricom service support department as provided in EXHIBIT C.
(I) ASP shall be responsible for providing Level II and Level III
Service Support to its Resellers.
3.8 TRAINING.
(A) SALES SUPPORT. Metricom will provide to ASP's qualified sales
trainers and sales managers initial sales training for the Service as set forth
in SECTION 4.3. Thereafter, ASP will be responsible for providing ongoing and
additional training of all ASP sales personnel subject to reasonable
requirements established by Metricom. Metricom may from time to time, at its
sole discretion, verify compliance with such requirements through routine
testing and other forms of verification. Failure to remove untrained or
improperly trained personnel from selling the Service until ASP has trained them
to Metricom's requirements will be considered a material breach of ASP's
obligations under this Agreement, subject to termination as set forth in