Contract
Exhibit 10.1.3
Pursuant
to 17 CFR 240.24b-2, confidential information has been omitted in
places marked “[*
* *]” and has been filed separately with the Securities and Exchange Commission pursuant to a
Confidential Treatment Application filed with the Commission.
Pursuant to Instruction 2 to Item 601 of Regulation S-K, NeuStar, Inc. has filed an
agreement with the Northeast Carrier Acquisition Company, LLC. which is one of seven agreements that
are substantially identical in all material respects other than the parties to the agreements.
North American Portability Management, LLC succeeded to the interests of Northeast Carrier
Acquisition Company, LLC and each of the other entities listed below. The following list identifies
the other parties to the six agreements that have been omitted
pursuant to Instruction 2 to Item 601:
| • | LNP, LLC (Midwest) | |
| • | Southwest Region Portability Company, LLC | |
| • | Western Region Telephone Number Portability, LLC | |
| • | Southeast Number Portability Administration Company, LLC | |
| • | Mid-Atlantic Carrier Acquisition Company, LLC | |
| • | West Coast Portability Services, LLC |
AMENDMENT
OF
AGREEMENT FOR NUMBER PORTABILITY ADMINISTRATION
CENTER / SERVICE MANAGEMENT SYSTEM
CENTER / SERVICE MANAGEMENT SYSTEM
FOR
LAW ENFORCEMENT AGENCY ACCESS
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
AMENDMENT
OF
AGREEMENT FOR NUMBER PORTABILITY ADMINISTRATION
CENTER/SERVICE MANAGEMENT SYSTEM
FOR
LAW ENFORCEMENT AGENCY ACCESS
OF
AGREEMENT FOR NUMBER PORTABILITY ADMINISTRATION
CENTER/SERVICE MANAGEMENT SYSTEM
FOR
LAW ENFORCEMENT AGENCY ACCESS
1. PARTIES
This
amendment (this “Amendment”) is entered into pursuant to Article 30 of, and upon execution
shall be a part of, the Contractor Services Agreements for Number Portability Administration
Center/Service Management System, as amended and in effect immediately prior to the Amendment
Effective Date (each such agreement referred to individually as the “Master Agreement” and
collectively as the “Master Agreements”), by and between NeuStar, Inc., a Delaware corporation
(“Contractor”), and the North American Portability Management LLC, a Delaware limited liability
company (the “Customer”), as the successor in interest to and on behalf of the Mid-Atlantic Carrier
Acquisition Company, LLC (the “Subscribing Customer”).
2. EFFECTIVENESS AND DEFINED TERMS
This Amendment shall be effective as of the 1st day of June, 2006 (the “Amendment
Effective Date”), conditioned upon execution by Contractor and Customer on behalf of all the
limited liability companies listed below for the separate United States Service Areas (the
“Subscribing Customers”).
| • | Mid-Atlantic Carrier Acquisition Company, LLC | ||
| • | LNP, LLC (Midwest) | ||
| • | Northeast Carrier Acquisition Company, LLC | ||
| • | Southeast Number Portability Administration Company, LLC | ||
| • | Southwest Region Portability Company, LLC | ||
| • | West Coast Portability Services, LLC | ||
| • | Western Region Telephone Number Portability, LLC |
The number in the upper left-hand corner refers to this Statement of Work. Capitalized terms used
herein without definition or which do not specifically reference another agreement shall have the
meanings as defined in the Master Agreements.
3. CONSIDERATION RECITAL
In consideration of the terms and conditions set forth in this Amendment, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Contractor
and Customer agree as set forth in this Amendment.
2
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
4. BACKGROUND
4.1 IVR under SOW 6
As a result of number portability, it is not possible to reliably identify the service provider
responsible for a telephone number. However, this service provider information is essential to law
enforcement agencies in the performance of their official duties. As a result Contractor and
Customer issued SOW 6, under which certain data about active ported or pooled numbers — the
serving carrier’s SPID and name, and the appropriate security contact name and number for the
service provider — are available from an Interactive Voice Response (“IVR”) system to Users and
authorized law enforcement agencies.
4.2 Request for Improved Access
Agencies approached Contractor and Customer to request a more efficient method of obtaining the
same information available from the IVR under SOW 6. Therefore, Customer and Contractor hereby
agree to provide electronic means of accessing the data already available from the IVR under SOW 6
without in any way affecting SOW 6.
| 5. | AUTHORIZATION FOR CONTRACTOR TO PROVIDE CERTAIN USER DATA TO QUALIFIED RECIPIENTS |
Customer and Contractor desire to amend the Master Agreement by this Amendment to provide qualified
law enforcement agencies access to certain portions of User Data to be used by them for lawful
activities. Accordingly, the Master Agreement is hereby amended as of the Amendment Effective Date
by the addition of new Section 15.8 to follow immediately after existing Section 15.7, such new
Section 15.8 to read in its entirety as follows:
15.8 Law Enforcement Agency Access
(a) Scope. Notwithstanding the foregoing provisions of this Article
15, Contractor is authorized in accordance with this Section 15.8 to provide
certain information, including User Data elements, to law enforcement
agencies making a request to Contractor for access to such information (as
more fully described below) in writing and that satisfy the requirements and
conditions set forth in this Section 15.8 (such law enforcement agencies to
be referred to herein as a “Qualified LEA”). The provision of the
information identified below in Section 15.8(f)(i) to a Qualified LEA
pursuant to the requirements and conditions of this Section 15.8 shall be
accomplished with the use of an LNP Enhanced Analytical Platform (“LEAP”)
and referred to as the “LEAP Service.”
3
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
The LEAP Service contemplated hereunder is neither Services, Additional
Services, nor an Enhancement, as those terms are defined in this Agreement.
Accordingly, and for all purposes of this Agreement, the LEAP Service shall
not (1) be considered in the definition of or to constitute Services,
NPAC/SMS services, or Additional Services under this Agreement, or to
constitute access or use of Services, NPAC/SMS services or Additional
Services under this Agreement, (2) be subject to the requirements and
provisions of Article 13 of this Agreement, (3) be considered in the
definition of or to constitute a User Enhancement or a Custom Enhancement
under this Agreement. It is the intention of the Customer and the
Contractor that the LEAP Service is allowable under this Agreement and the
User Agreement in furtherance of law, rule, regulation or order of the
Federal Communications Commission or other regulatory agencies having
jurisdiction over the NPAC/SMS Service.
Nothing in this Section 15.8 shall affect or otherwise modify SOW 6,
concerning the implementation and use of the NPAC SMS IVR system.
Customer and Contractor agree that Contractor will cease providing the LEAP
Service upon the issuance of any valid order of the FCC, any other
regulatory agency having jurisdiction over the NPAC/SMS service or any court
of competent jurisdiction (a) determining that the LEAP Service is
inconsistent with or in violation of applicable law or (b) enjoining the
provision of the LEAP Service, and that, following any such order,
Contractor shall not provide the LEAP Service unless or until such order is
rescinded, overturned or modified to permit the provision of the LEAP
Service by a final order of the relevant agency, court or a reviewing court.
(b) LEAP Service Agreement. The LEAP Service shall be provided only
to a Qualified LEA, as determined in accordance with this Section 15.8,
after execution and delivery of an agreement satisfying the requirements set
forth in Section 15.8(f), in substantially the form of Exhibit P attached
hereto and made a part hereof, and as it may be amended from time to time in
accordance with or permitted by this Section 15.8 (the “LEAP Service
Agreement”). Contractor shall have the right to amend or to change any
provision of the LEAP Service Agreement which is not required under Section
15.8(f) and which is not otherwise in violation or breach of this Agreement,
including this Section 15.8; provided, however, that Contractor shall
provide Customer with at least thirty (30) days advance written notice of
any such allowable change or revision to the LEAP Service Agreement; and
provided, further, that changes or amendments to those provisions in the
LEAP Service Agreement that are required under Section 15.8(f) may be made
and shall only be effective upon the advance written agreement of Customer
and the Xxxxxxxxxx.
0
| Xxxxxxxxx Xx. 00 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
In consideration for providing the LEAP Service in accordance with the LEAP
Service Agreement and this Section 15.8, Contractor shall be compensated
directly and exclusively from each respective Qualified LEA in accordance
with Section 15.8(i). Customer shall not unreasonably withhold consent to
Contractor requests for the use of alternative versions of the LEAP Service
Agreement for differently situated Qualified LEAs, so long as those
agreements otherwise comply with the requirements of this Section 15.8.
(c) Relationship to NPAC/SMS Services. Contractor and Customer
expressly agree and acknowledge that the LEAP Service shall be offered only
so long as it does not adversely affect the operation and performance of the
NPAC/SMS and the delivery of Services pursuant to this Agreement, and
accordingly, the provision of Services under the terms and conditions of
this Agreement, other than this Section 15.8, shall take priority to the
provision of the LEAP Service. Further, in addition to causes for
termination of this Agreement set forth in this Agreement and the User
Agreement, the provision of the LEAP Service and all LEAP Service Agreements
may be terminated upon the occurrence of those events set forth in Section
15.7(l). If Contractor establishes a LEAP Service help desk, the telephone
number for such help desk shall be different from any current telephone
number for a NPAC/SMS help desk. The costs of any such LEAP Service help
desk shall be eligible for inclusion as “Costs” under Section 15.8(i)(ii).
(d) Liability. Contractor shall defend, indemnify and hold
harmless Customer, its members and their officers, directors, employees, and
agents and their successors and assigns against and from any and all losses,
liabilities, suits, damages, claims, demands, and expenses (including,
without limitation, reasonable attorneys’ fees) included in a settlement
(between Contractor and a Third Party) of such suits, claims or demands, or
awarded to a Third Party by a court or appropriate administrative agency of
competent jurisdiction, including, without limitation, those based on
contract or tort arising out of or in conjunction with, but only to the
extent that such losses, liabilities, damages claims, demands, and expenses
arise out of, or in connection with allegations that the manner in which
Contractor provided the LEA Data Elements as part of the LEAP Service
violates a law, rule or regulation, except when the manner in which
Contractor provided the LEA Data Elements was prescribed by Customer.
(e) Inapplicability of Service Levels, GEP Elements and Benchmarking
Process. Contractor and Customer expressly agree and acknowledge that
Contractor’s provision of the LEAP Service hereunder shall not be subject to
any separate Service Level Requirements under
5
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
Article 8 of this Agreement and Exhibit G, to any Benchmarking Process under
Article 7 of this Agreement, or to the Gateway Evaluation Process under
Article 32 of this Agreement, and thus no separate Service Levels, GEP
Elements or Benchmarking Process are hereby established with respect to the
provision of the LEAP Services. Notwithstanding the foregoing, the effect
and consequences on the Services from the provision of the LEAP Service
shall be included in evaluating the obligations of Contractor with respect
to the Service Levels under Article 8 and the GEP Elements under Article 32,
including but not limited to all the remedies and recourses resulting from
Contractor’s failure or noncompliance under this Agreement and the User
Agreement.
(f) Required Provisions of LEAP Service Agreement. Each LEAP
Service Agreement shall be only between the Contractor and the Qualified LEA
and, in addition to containing provisions customary in commercial contracts
of this nature, must contain provisions specifying the following:
(i) User Data Elements Provided. As part of the LEAP
Service, Contractor shall make available (A) the OCN of the service
provider associated with a telephone number, (B) the identity of
that service provider, and (C) the contact name and number, if
available, as submitted to the NPAC by that service provider as its
law enforcement contact, and no other User Data elements, for each
of the 7 United States Service Areas. The elements referred in (A),
(B), and (C) in the immediately preceding sentence shall be referred
to as “LEA Data Elements”.
(ii) LEAP Provisioning. Contractor shall use the same
method to provision LEAP as is currently used daily to create Bulk
Data Downloads (BDDs). In order to build a BDD, a script currently
is run against a copy of the NPAC/SMS database stored on a disk that
is created daily located on a NeuStar server that is not associated
with the NPAC/SMS. Contractor maintains an FTP site with “folders”
for each User. If a User requests a BDD file, then the BDD file is
placed on the requester’s folder on the FTP site. The FTP site is
located on a NeuStar server that is not associated with the
NPAC/SMS. The script to derive data from the copy of the NPAC/SMS
database to provision LEAP is different from a BDD script in terms
of the data retrieved, but the process involved is the same. The
LEAP script obtains only data that are defined as LEA Data Elements
in accordance with Section 15.8. When the LEAP script is run, the
resulting data are placed in the FTP folder assigned to LEAP. The
data in the LEAP folder on the FTP site then is loaded into LEAP
where it becomes available for queries by Qualified LEAs under the
LEAP Service.
6
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
(iii) Manner of Access. Qualified LEAs shall access the
LEAP Service by vitual private network (machine to machine) or
Internet (person to GUI). Qualified LEAs access to LEAP shall be
accomplished by authenticated, secure and encrypted means. The LEA
Data Elements may be provided to Qualified LEAs by Contractor
through any electronic interface selected by Contractor that
otherwise complies with this Section 15.8. LEAP shall not provide
Qualified LEAs, either directly or indirectly, access to the NPAC or
any NPAC User Data other than the LEA Data Elements in accordance
with this section. A Qualified LEA may query LEAP an unlimited
number of times, but may not request LEAP Data Elements for more
than 100 TNs per query.
(iv) Exclusive Use. Contractor may authorize a Qualified LEA
to use LEA Data Elements received as part of the LEAP Service only
for lawful purposes within the statutory authority of the Qualified
LEA. Contractor will require that each Qualified LEA warrant that
it will not (A) disclose, sell, assign, lease or otherwise provide
LEA Data Elements to any other party, including to a local service
management system or public database, except as may otherwise be
required by applicable federal, state, or local law, rules,
regulations, or orders, or (B) commercially exploit the LEA Data
Elements in any way. By way of clarification, and not limitation,
the immediately preceding restrictions require that a Qualified LEA
will not share the LEA Data Elements with other agencies or with
other Qualified LEAs or share LEA Data Elements with officers or
employees of other agencies or Qualified LEAs.
(v) Compliance with Laws. Contractor shall require that
each Qualified LEA warrant that it will comply with all applicable
laws, orders and regulations applicable, including those applicable
to the NPAC/SMS, including User Data.
(vi) Acknowledgment of Non-liability of Customer and Users.
Both Contractor and the Qualified LEA shall agree and expressly
acknowledge the rights of termination under this Agreement,
including by reason of Section 15.8(l), the absolute exclusions from
liability with respect to Customer and the exclusion from liability
with respect to Users and End-Users for any amounts that would have
otherwise been due and payable by such Qualified LEA under the terms
and conditions of the LEAP Service Agreements or as a result of the
provision of the LEAP Service upon the termination of the provision
the LEAP Service (the “Unpaid Charges”) without an explicit rule,
regulation, order,
7
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
opinion or decision of the Federal Communications Commission or any
other regulatory body having jurisdiction or delegated authority
with respect to the subject matter of this Agreement directing the
responsibility and liability for payment of those Unpaid Charges by
Users or End Users.
(vii) Termination. Both Contractor and the Qualified LEA
shall agree and expressly acknowledge that upon any termination of
any LEAP Service Agreement, the restrictions with respect to User
Data and LEA Data Elements shall survive such termination.
(viii) Liability, Indemnification and Dispute Resolution.
The LEAP Service Agreement shall contain liability, indemnification
and dispute resolution terms and conditions customary in the
industry for like services.
(ix) Compensation. Subject to Section 15.8(i) of this
Agreement, Contractor may charge compensation and the Qualified LEA
shall agree to pay such compensation for the provision of the LEAP
Service.
(g) Remain User Data. The LEA Data Elements, being provided as part
of the LEAP Service, being User Data, shall remain User Data and
Confidential Information.
(h) Qualification. Contractor shall not provide LEAP Service to any
party unless such party first qualifies as a Qualified LEA pursuant to this
Section 15.8(h), and such party enters into and executes the LEAP Service
Agreement.
(i) Application. Contractor may entertain only applications
from an agency, or officer thereof, of the United States or of a
State or political subdivision thereof, that is empowered by law to
conduct investigations of or to make arrests for violations of
federal, state or local laws (“Law Enforcement Agencies” or LEAs).
Notwithstanding the foregoing, Contractor may entertain applications
from LEAs through associations and centralized procurement
organizations on behalf of the individual LEAs, so long as such LEAs
individually meet the qualification requirements set forth in this
Section 15.8(h) and such individual LEA executes a LEAP Service
Agreement in accordance with Section 15.8(b).
8
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
(ii) Qualification. Contractor shall require that an
applicant: (A) certify that it is a Law Enforcement Agency, and
(B) provide the following information: requester’s name, title,
organization, street address, phone number, e-mail address, and, if
applicable, badge number or other applicable ID. Upon qualification
of the Law Enforcement Agency as a Qualified LEA, Contractor may
require additional information for the purposes of establishing
access to the LEAP Service.
(iii) Evaluation. Based upon the application, Contractor
shall determine, based upon a good-faith, reasonable interpretation
of the information provided by such applicant, whether the applicant
qualifies as a Qualified LEA. Contractor shall verify the
applicant’s organization through the National Public Safety
Information Source database, or such other similarly authoritative
source (the “LEA Sources”). Contractor shall independently verify
the applicant’s name, title, and, if applicable, badge number or
other applicable ID by contacting the identified organization’s
contact information set forth in the LEA Sources. Other than the
foregoing, Contractor shall have no duty to investigate the accuracy
of any information provided by an applicant on such application.
(iv) Confirmation Process. Once a calendar year, Contractor
shall re-verify each Qualified LEA’s organization in accordance with
Section 15.8(h)(iii) above.
(v) Annual Reports. At no additional charge to Customer,
Contractor shall provide to Customer an annual report listing all
Qualified LEAs in effect during the previous twelve-month period,
and separately list all Qualified LEAs that were newly qualified
during the same period.
(i) Compensation.
(i) Basis. Contractor shall not be entitled to compensation
of any kind under this Section 15.8 from Customer, Subscribing
Customers, Users or End-Users, and shall look solely to the
respective Qualified LEA for any and all compensation for the
provision of the LEAP Service (referred to as the “LEAP Charges”).
Customer and Contractor agree and acknowledge that the LEAP Service
is not necessary for the provision of number portability.
Contractor agrees to compute and to allocate the LEAP Charges in a
fair and non-discriminatory manner consistent with the rules,
regulations, orders, opinions and decisions of the
9
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
Federal Communications Commission and other regulatory body having
jurisdiction or delegated authority with respect to the NPAC/SMS or
this Agreement.
(ii) Cost Plus the Fee. Subject to Section 15.8(i)(i) above
and Section 15.8(i)(iv) below, the aggregate amount of LEAP Charges
received by Contractor under this Section 15.8(i) since the
inception of the LEAP Service and during the Initial Term shall
equal not more than the Cost plus the Fee, as more particularly
described herein below.
(A) Cost. “Cost” means [* * *] and which have [* *
*] or otherwise, which Costs shall include [* * *] and [* *
*], which are [* * *].
“[* * *]” costs are those [* * *] Contractor, or by a
subcontractor or vendor at the direction of the Contractor,
[* * *], including activities related to, but not limited to,
[* * *]. [* * *] shall also include, without limitation, [*
* *], but excluding [* * *]. Support for [* * *] will
include [* * *].
“[* * *]” are those [* * *] associated with any [* * *].
For purposes of this Section 15.8, [* * *] shall equal the [*
* *] (a) [* * *] and (b) [* * *] percent ([* * *]%).
(B) Fee. “Fee” is the amount that equals [* * *]
percent ([* * *]%) of the sum of [* * *] and [* * *].
(iii) Allocation. In establishing the LEAP Charges payable
by Qualified LEA, Contractor shall allocate the Cost plus Fee among
Qualified LEA in any manner that is fair and reasonable, which for
the purposes of this Section 15.8(i) shall mean usage based,
equitably, customary for similar services, commercially reasonable,
and which does not discriminate against similarly situated Qualified
LEAs. Notwithstanding the foregoing, Contractor and Customer
expressly agree and acknowledge that the manner of allocating the
Cost plus Fee shall be solely the responsibility of the Contractor,
and that Customer assumes no responsibility or control with respect
to such manner nor does Customer in any way endorse the manner
selected by Contractor; subject, however, to the right of the
Customer to seek guidance or direction from the Federal
Communications Commission or any other regulatory body having
jurisdiction or delegated authority with respect to the subject
matter of this Agreement. Further,
10
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
Contractor agrees that no amounts of any LEAP Charges which, for
whatever reason are not recovered by Contractor or allocated and
paid for by Qualified LEA, including by way of inclusion in any cost
or overhead computations related to Services under the Master
Agreement, any Statements of Work or otherwise, shall be charged or
allocated to or assessed and paid by Customer, any Subscribing
Customer, any User or any End-User.
(iv) Cost Review. Within ninety (90) days after the end of
each calendar year, Contractor will cause its regular independent
auditor (“Contractor’s Auditor”) to commence a review of the
accuracy and validity of the Costs and related calculations under
Section 15.8(ii) (the “LEAP Cost Review"). Within sixty (60) days
after commencing the LEAP Cost Review, Contractor’s Auditor shall
issue a sufficiently detailed report (“LEAP Cost Report”) to the
Contractor validating the Costs incurred and the Fee applied.
Contractor shall make available to Contractor’s Auditor such
documentation necessary to conduct the LEAP Cost Review and issue
the LEAP Cost Report, including the following: general ledger
reports of LEAP Service activity, accounts payable vouchers,
invoices, and documents supporting purchases in support of the LEAP
Service activity, and other financial records used to support
general ledger activity related to the LEAP Service and any other
records reasonably requested by Contractor’s Auditor (collectively,
the “LEAP Review Documents”).
Contractor shall present Customer with the LEAP Cost Report within
thirty (30) days after Contractor’s receipt of the LEAP Cost Report.
Upon Customer’s receipt of the LEAP Cost Report, Customer shall
have forty-five (45) days to review the LEAP Cost Report and, at
Subscribing Customer’s sole cost and expense, do either of the
following (i) meet with Contractor’s Auditor to review and explain
the LEAP Cost Report, or (ii) inform Contractor in writing that
Customer shall employ a separate auditor (“Customer’s Auditor”) to
conduct a separate review of the accuracy and validity of the Costs
incurred under this Section 15.8. Customer’s Auditor will be given
reasonable access to the LEAP Review Documents. Customer’s Auditor
shall complete such separate review within ninety (90) days of
receipt of the LEAP Cost Report. Before access is given to
Customer’s Auditor, Customer’s Auditor will have to execute a
non-disclosure agreement with Contractor to prevent the disclosure
of Contractor proprietary or confidential information or other
information not
11
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
relevant to verifying the accuracy and validity of the Costs
incurred by the Contractor under this Section 15.8.
If it is determined by Contractor’s Auditor or Customer’s Auditor
that the compensation Contractor has received since the inception of
the LEAP Service under this Section 15.8 exceeds Cost plus the Fee,
Contractor shall propose to Contractor’s Auditor and Customer’s
Auditor, if any, its plan, which may include, but is not limited to,
at Contractor’s discretion, changes to future LEAP Charges under
Section 15.8(i)(i) and and/or the allocations under Section
15.8(i)(iii) for future LEAP Services, such that its continuing
aggregate compensation does not exceed Cost plus the Fee in
accordance with Section 15.8(i)(ii). Contractor’s Auditor and
Customer’s Auditor, if any, shall review for reasonableness and
adequacy Contractor’s proposal and supplement, as necessary, the
LEAP Cost Report. In no event shall Contractor be deemed in
violation of Section 15.8(i)(ii) merely because the amount of LEAP
Charges received by Customer under this Section 15.8(i) since the
inception of the LEAP Service and during the Initial Term exceeds
Cost plus the Fee; provided, however, that Contractor’s Auditor and
Customer’s Auditor, if any, concludes that Contractor’s proposal
under this paragraph for limiting its aggregate compensation such
that it does not exceed the limit set forth in Section 15.8(i)(ii)
is reasonable and adequate.
If Customer’s Auditor determines that the amount of LEAP Charges
received by Customer under this Section 15.8(i) since the inception
of the LEAP Service and during the Initial Term exceeds Cost plus
the Fee by more than [* * *] percent ([* * *]%), Contractor shall
reimburse Customer for the reasonable costs of such review by the
Customer’s Auditor; provided however that such reimbursement for
Customer collectively shall not exceed [* * *] US Dollars (US $[* *
*]).
(j) Audit of Section 15.8 Performance. Subject to Section 15.8(e),
and without duplicating the LEAP Cost Review under Section 15.8(i)(iv),
Contractor shall annually engage a third party, reasonably acceptable to
both Contractor and Customer, separately to audit (referred to as the “LEAP
Service Audit”) Contractor’s compliance with the requirements to (1)
qualify, evaluate, confirm, and report on LEAs as Qualified LEAs under
Paragraphs (ii), (iii), (iv), and (v) under Section 15.8(h), (2) include in
each Qualified LEA’s LEAP Service Agreement restrictions on the use of data
under Section 15.8(f)(iv), (3) ensure there is no interaction between LEAP
and the production NPAC under Section 15.8(f)(ii), and
12
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
(4) charge each Qualified LEA consistent with its LEAP Service Agreement
under 15.8(f)(ix).
The costs and expenses of the LEAP Service Audit shall be charged and
accounted for separately from the costs and expenses of the GEP Audit and
shall be properly included in Direct Costs under Section 15.8(i). A report
from the LEAP Service Auditor regarding the results of the LEAP Service
Audit (“LEAP Service Audit Report”) shall be provided to the Customer and
the Contractor for informational purposes only in the same manner that the
GEP Audit Report is provided under Section 34.4(e), and such LEAP Service
Audit Report shall be so provided within thirty (30) days after its
completion, subject to any review and consideration of a draft of the LEAP
Service Audit Report. If the LEAP Service Auditor is unable alone to
determine the methodology and procedures for the LEAP Service Audit, such
Auditor shall determine the methodology and procedures in consultation with
the Customer and the Contractor, and the LEAP Service Auditor shall include
in such LEAP Service Audit Report both findings and recommendations to
correct identified deficiencies or failures to comply with the provisions of
this Section 15.8. Notwithstanding the foregoing, the Customer and the
Contractor agree and acknowledge that neither the LEAP Service Audit nor
this Section 15.8 is intended to result in the imposition of any damages,
Performance Credits, TN Porting Price Reductions, subject to Section 15.8(e)
above regarding the effect and consequences on the Services from the
provision of the LEAP Service and the causes for termination of the
provision of the LEAP Service and all LEAP Service Agreements set forth in
Section 15.8(l) below.
(k) Neutrality Reviews. In addition to the LEAP Service Audit, and
further subject to Section 15.8(e), the LEAP Service shall be included in
the Neutrality Review provided for in the Assignment Agreement (Contractor
Services Agreement), dated November 30, 1999, by and among Contractor,
Lockheed Xxxxxx IMS and the Customer (the “Assignment Agreement”). If it is
determined under and as part of a Neutrality Review that Contractor’s
provision of the LEAP Service in any way resulted in the violation of a
neutrality requirement set forth in the Master Agreement, the User
Agreement, the Assignment Agreement, or any applicable rule, regulation,
order, opinion or decision of the Federal Communications Commission or any
other regulatory body having jurisdiction or delegated authority with
respect to the subject matter of this Amendment or the Master Agreement,
Contractor shall attempt to correct such violation within thirty (30) days
following the date of the issuance of the Neutrality Review; provided,
however, that where such failure cannot reasonably be cured within such
thirty (30) day period, so long as
13
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
Contractor is diligently pursuing such cure, and regulatory authorities
having jurisdiction over such matters (after having reviewed the details of
the event(s) causing Contractor’s failure) have not specifically required
Customer to terminate the LEAP Service and terminate all LEAP Service
Agreements, the time for curing such failure shall be extended for such
period as may be necessary for Contractor to complete such cure.
Notwithstanding the foregoing, the Customer may, at its election but without
duty or obligation, and without risk of costs or damages recoverable from
Contractor for Customer’s election, seek the guidance and direction of such
regulatory authorities if such failure has not been cured within ninety (90)
days following the date of the issuance of the Neutrality Review and the
LEAP Service and all LEAP Service Agreements have not been terminated. The
costs and expenses of including the LEAP Service in the Neutrality Review
shall be charged and accounted for separately from the costs and expenses of
the Neutrality Review and shall be properly included in Direct Costs under
Section 15.8(i).
(l) Additional Causes for Termination. In addition to the causes
for termination of this Agreement and the User Agreement set forth in this
Agreement and the User Agreement, the provision of the LEAP Service and all
LEAP Service Agreements shall immediately be terminated upon the direction
of the Federal Communications Commission or any other regulatory body having
jurisdiction or delegated authority with respect to the subject matter of
this Agreement or upon a finding or determination of the Federal
Communications Commission or any other regulatory body that the continued
provision of the LEAP Service is contrary to or inconsistent with the duties
or roles of the Contractor or the Customer in any way. Contractor shall be
responsible for any fines and penalties arising from any noncompliance by
Contractor, its subcontractors or agents with any such determinations,
findings or rulings or with Contractor’s refusal to terminate the provision
of the LEAP Service and all LEAP Service Agreements.
6. IMPACTS ON MASTER AGREEMENT
The following portions of the Master Agreement are impacted by this Amendment:
None
|
Master Agreement | |
None
|
Exhibit B — Functional Requirements Specification | |
None
|
Exhibit C — Interoperable Interface Specification | |
None
|
Exhibit E — Pricing Schedules | |
None
|
Exhibit F — Project Plan and Test Schedule |
14
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
None
|
Exhibit G — Service Level Requirements | |
None
|
Exhibit H — Reporting and Monitoring Requirements | |
None
|
Exhibit J — User Agreement Form | |
None
|
Exhibit K — External Design | |
None
|
Exhibit L — Infrastructure/Hardware | |
None
|
Exhibit M — Software Escrow Agreement | |
None
|
Exhibit N — System Performance Plan for NPAC/SMS Services | |
None
|
Exhibit O — Intermodal Ported TN Identification Service Agreement | |
þ
|
Exhibit P — LEAP Service Agreement | |
None
|
Disaster Recovery | |
None
|
Back Up Plans | |
None
|
Gateway Evaluation Process (Article 32 of Master Agreement) |
7. MISCELLANEOUS
(a) Neither Customer nor Subscribing Customer shall in any way be liable to any Qualified LEA
or Second Tier Limited User Data Recipient or to Contractor or any User under the LEAP Service
Agreements or as a result of the provision the LEAP Service.
(b) Except as specifically modified and amended hereby, all the provisions of the Master
Agreement and the User Agreements entered into with respect thereto, and all exhibits and schedules
thereto, shall remain unaltered and in full force and effect in accordance with their terms. From
and after the Amendment Effective Date hereof, any reference in the Master Agreement to itself and
any Article, Section or subsections thereof or to any Exhibit thereto, or in any User Agreement to
itself or to the Master Agreement and applicable to any time from and after the Amendment Effective
Date hereof, shall be deemed to be a reference to such agreement, Article, Section, subsection or
Exhibit, as modified and amended by this Amendment. From and after the Amendment Effective Date,
Amendment shall be a part of the Master Agreement, including its Exhibits, and, as such, shall be
subject to the terms and conditions therein. Each of the respective Master Agreements with respect
to separate Service Areas remains an independent agreement regarding the rights and obligations of
each of the Parties thereto with respect to such Service Area, and neither this Amendment nor any
other instrument shall join or merge any Master Agreement with any other, except by the express
written agreement of the Parties thereto.
(c) If any provision of this Amendment is held invalid or unenforceable, then the remaining
provision of this Amendment shall become null and void and be of no further force or effect. If by
rule, regulation, order, opinion or decision of the Federal Communications Commission or any other
regulatory body having jurisdiction or delegated authority with respect to the subject matter of
this Amendment or the Master Agreement, this Amendment is required to be rescinded or declared
ineffective or void in whole or in part, whether temporarily, permanently or ab initio (an
“Ineffectiveness Determination”), immediately upon such Ineffectiveness Determination and without
any requirement on any party to appeal, protest or otherwise seek clarification of such
Ineffectiveness Determination, this Amendment shall be rescinded and of no further force or effect
retroactively to the Amendment Effective Date.
15
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
Consequently, the Master Agreement in effect immediately prior to the Amendment Effective Date
shall continue in full force and effect in accordance with its terms, unchanged or modified in any
way by this Amendment. In the event of an Ineffectiveness Determination, any amounts that would
have otherwise been due and payable under the terms and conditions of the LEAP Service Agreements
or as a result of the provision the LEAP Service (the “Unpaid Charges”) will in no event be charged
or allocated to Users or End Users, including by way of inclusion in any cost or overhead
computations related to Services under the Master Agreements, any Statements of Work or otherwise,
without an explicit rule, regulation, order, opinion or decision of the Federal Communications
Commission or any other regulatory body having jurisdiction or delegated authority with respect to
the subject matter of this Amendment or the Master Agreement directing the responsibility and
liability for payment of those Unpaid Charges by Users or End Users.
(d) This Amendment may be executed in two or more counterparts and by different parties hereto
in separate counterparts, with the same effect as if all parties had signed the same document. All
such counterparts shall be deemed an original, shall be construed together and shall constitute one
and the same instrument.
(e) If at any time hereafter a Customer, other than a Customer that is a party hereto desires
to become a party hereto, such Customer may become a party hereto by executing a joinder agreeing
to be bound by the terms and conditions of this Amendment, as modified from time to time.
(f) This Amendment is the joint work product of representatives of Customer and Contractor;
accordingly, in the event of ambiguities, no inferences will be drawn against either party,
including the party that drafted the Agreement in its final form.
(g) This Amendment sets forth the entire understanding between the Parties with regard to the
subject matter hereof and supercedes any prior or contemporaneous agreement, discussions,
negotiations or representations between the Parties, whether written or oral, with respect thereto.
The modifications, amendments and price concessions made herein were negotiated together and
collectively, and each is made in consideration of all of the other terms herein. All such
modifications, amendments and price concessions are interrelated and are dependent on each other.
No separate, additional or different consideration is contemplated with respect to the
modifications, amendments and price concessions herein.
(h) This Amendment, the use of the Cost Plus Fee method for determining compensation payable
by Qualified LEA and the composition and details of the Cost Plus Fee method set forth in this
Amendment are intended by Contractor and Customer to be separate and distinct from and unrelated to
any agreement with respect to Statements of Work under the Master Agreement and the method of
determining the cost of such Statements of Work, and shall not be considered to alter, modify,
change or amend any such agreements with respect to Statements of Work or to supersede any such
agreements with respect to such Statements of Work.
16
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
[THIS SPACE INTENTIONALLY LEFT BLANK]
17
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
IN WITNESS WHEREOF, the undersigned have executed this Amendment:
| CONTRACTOR: NeuStar, Inc. | ||||
By: |
/s/ Xxxxxxx X’Xxxxxx | |||
Its: |
VP - Customer Relations | |||
Date: |
19 July 2006 | |||
CUSTOMER: North American Portability Management, LLC as successor in interest to
and on behalf of Mid-Atlantic Carrier Acquisition Company, LLC
and on behalf of Mid-Atlantic Carrier Acquisition Company, LLC
By: |
/s/ Xxxxxx Xxxx | |||
Its: |
Co-Chair | |||
Date: |
6/28/2006 | |||
By: |
/s/ Xxxxxxx X. Xxxxxx | |||
Its: |
Co-Chair | |||
Date: |
7/19/2006 | |||
18
| Amendment No. 53 (MA) | June 1, 2006 | |||
SOW:
|
þ No | |||
| o Yes | ||||
ATTACHMENT 1
TO
AMENDMENT NO. 53
Exhibit P to Master Agreement — LEAP Service Agreement
19
