OPERATING AGREEMENT
THIS OPERATING AGREEMENT (the "Agreement") is dated as of the 16th day
of January, 1998 (the "Effective Date") by and between AT&T Wireless Services,
Inc., on behalf of itself and its Affiliates listed in Schedule 1 hereto
(individually and collectively, "AWS") and Xxxxxx Cellular Systems, Inc., on
behalf of itself and its Affiliates listed in Schedule 2 hereto (individually
and collectively, "Xxxxxx"). AWS and Xxxxxx are sometimes referred to,
individually, as a "Party" and together as "Parties."
R E C I T A L
WHEREAS, each of AWS and Xxxxxx desires to make arrangements to
facilitate the provision of voice and voice-related mobile wireless
radiotelephone service to its Customers through the wireless radiotelephone
facilities of the other Party in a manner providing a common look and feel and
the appearance of seamlessness between the Parties' facilities, in accordance
with the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein set forth and intending to be legally bound hereby, the Parties do hereby
agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the terms below shall have the following
meanings:
ADDITIONAL FEATURES means the Features that are neither Core Features
nor Future Core Features but that are offered by a Party to its Customers in its
Home Service Area.
ADOPTED FEATURES means the Core Features and the Future Core Features.
AFFILIATE means, with respect to a Party, any facilities-based CMRS
operating company that (a) is controlled by or under common control with the
Party, (b) is an entity in which the Party has at least fifty percent (50%)
voting interest, (c) shares switching facilities with the Party, (d) is managed
by the Party, or (e) is providing Service utilizing CMRS spectrum it has
acquired from a Party.
APPROVED CIBERNET NEGATIVE FILE GUIDELINES means the negative file
guidelines appearing in the CIBER Record in effect from time to time.
AT&T WIRELESS means AT&T Wireless Services, Inc., individually.
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AUTHORIZED RECEIPT POINT or ARP means the location or address of the
Party designated by the Home Carrier as the delivery point for its CIBER records
and authorized agent for performing CIBER edits.
AUTHORIZED ROAMER means a Roamer using equipment and an assigned
telephone number with the NPA/NXX combinations listed in accordance with Article
VI below for whom the Serving Carrier has not received a negative notification
in accordance with the provisions of this Agreement.
AWS has the meaning set forth in the first paragraph of this Agreement.
AWS SYSTEM means the facilities owned and/or operated by AWS with which
it provides Service anywhere within the United States.
BTA means a geographic area designated by the FCC as a Basic Trading
Area in which a PCS System may be operated, as described more specifically in 47
CFR 24.202 of the FCC rules and regulations.
CELLULAR SYSTEM means a wireless communication system that is operated
pursuant to authority granted by the FCC under 47 CFR Part 22.
CIBER means Cellular Intercarrier Billing Exchange Record.
CIBER RECORD means the publication prepared by CIBERNET Corporation, a
wholly-owned subsidiary of the Cellular Telecommunications Industry Association,
as a service to the wireless communications industry. Unless specifically
provided otherwise in this Agreement, all words and phrases defined in the CIBER
Record shall have the meaning herein that they have therein.
CLEARINGHOUSE means that entity which provides for the exchange of CIBER
records and performs industry accepted CIBER edits, including edits to verify
Industry Negative File information.
CMRS means any Commercial Mobile Radio Service as authorized by the FCC.
CORE FEATURES means the Features that, as of the Effective Date, AWS and
Xxxxxx have agreed to implement and maintain in order to create a common look
and feel and seamless subscriber service between the AWS System and the Xxxxxx
System, as evidenced by their listing in Schedule E-1 to Exhibit E attached
hereto.
CUSTOMER means an end-user of Service with which a Party has entered
into an agreement to provide such Service, regardless of whether such Service is
to be provided through the facilities of such Party.
DEFAULT has the meaning set forth in Section 13.1.
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XXXXXX has the meaning set forth in the first paragraph of this
Agreement.
XXXXXX SERVICE AREA means the geographic area in which Xxxxxx and those
of its Affiliates now or hereafter listed on Schedule 2 provide Service.
XXXXXX SYSTEM means the facilities owned and/or operated by Xxxxxx with
which it provides Service anywhere within the Xxxxxx Service Area.
XXXXXX TDMA SYSTEM means that portion of the Xxxxxx System located in
the markets listed on Exhibit A.
EFFECTIVE DATE has the meaning set forth in the first paragraph of this
Agreement.
ESN means the Electronic Serial Number that is encoded in a wireless
telephone set by the manufacturer and which is broadcast by such telephone.
EQUIPMENT means phones, handsets, transmitters, terminals, control
equipment and switches and other hardware and software required or useful to use
Service, including phones and handsets Customers use in connection with Service.
FCC means the Federal Communications Commission and any successor agency
or authority.
FEATURES means voice and voice-related features and services available
from a Party through its mobile wireless telecommunication system.
FUTURE CORE FEATURES means the Features that are agreed upon in the
future by the Parties pursuant to Section 10.3.2 as necessary to maintain a
common look and feel, and seamless subscriber service, between the AWS System
and the Xxxxxx System, and which the Parties agree will be supported by both of
their Systems, on the terms and conditions of this Agreement, in the same manner
as the Core Features. Once implemented, a Future Core Feature shall be deemed a
Core Feature for purposes of this Agreement.
GENERAL AVAILABILITY means the date upon which the technology and
products that comprise any Future Core Features are commercially available from
the vendors of such technology and product(s), and such Feature has successfully
completed and passed the first application in the System of the Party seeking to
implement such features and is ready for live commercial deployment.
HOME CARRIER means a Party who is providing Service to its registered
Customers in a geographic area where it holds a license or permit to construct
and operate a mobile wireless radiotelephone system and station.
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HOME SERVICE AREA means the geographic area in which a Home Carrier is
licensed to provide Service.
INDUSTRY NEGATIVE FILE means the negative file maintained by the
authorized Clearinghouses in accordance with approved CIBERNET Negative File
Guidelines.
MIN means the "Mobile Identification Number" which is assigned by a Home
Carrier to each of its registered Customers.
MSA means a geographic area designated by the FCC as a Metropolitan
Service Area in which a Cellular System may be operated, as described more
specifically in 47 CFR 22.909 of the FCC rules and regulations.
MTA means a geographic area designated by the FCC as a Major Trading
Area in which a PCS System may be operated, as described more specifically in 47
CFR 24.202 of the FCC rules and regulations.
NPA/NXX COMBINATIONS means the six-digit numerical combinations assigned
by regulatory authorities to identify the area code and telephone number prefix
for Service.
PCS SYSTEM means a wireless communication system that is operated
pursuant to authority granted by the FCC under 47 CFR Part 24.
PARTIES and PARTY have the meanings set forth in the first paragraph of
this Agreement.
ROAMER means a Customer of one Party who seeks Service from the other
Party within the geographic area served by the other Party, regardless of
whether Service also is offered in that area by the Party whose Customer is
seeking Service.
RSA means a geographic area designated by the FCC as a Rural Service
Area in which a Cellular System may be operated, as described more specifically
in 47 CFR 22.909 of the FCC rules and regulations.
SERVICE means telecommunications service for the transmission and
reception of voice and voice-related features provided by means of radio
frequencies that are or may be licensed, permitted or authorized now or in the
future by the FCC for use by a Cellular System or a PCS System, and in respect
of which service the user equipment is capable of and intended for usage during
routine movement, including halts at unspecified points, at more than one
location throughout a wide area public or private wireless network. Unless
otherwise specifically agreed by the Parties, Service shall include personal
base station services but, by way of example and without limitation, does not
include fixed wireless services, two-way messaging wireless services (NBPCS),
video broadcasting wireless services, television services (whether cable,
broadcast or direct broadcast satellite), broadcast radio services, interactive
informational or transactional content services such as on-line content network
services, Internet based services, satellite based communications services, and
air to ground communications services.
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SERVING CARRIER means a Party who provides Service for registered
Customers of another Party while such Customers are in the geographic area where
the Serving Carrier, directly or through subsidiaries, provides Service.
SYSTEM means the AWS System or the Xxxxxx System, and SYSTEMS means the
AWS System and the Xxxxxx System.
TDMA means the present and future North American Time Division Multiple
Access standard which is set by the Telecommunications Industry Association
(which at the Effective Date is IS-136), which is the essential radio frequency
technical method for digital wireless telephone operations upon which the
Service and equipment related thereto are designed to operate.
USER INTERFACE means the process, functional commands, and look and feel
by which a Customer operates and utilizes the Adopted Features, including the
sequence and detail of specific commands or service codes, the detailed
operation and response of Equipment to the sequence of keys pressed to effect
subscriber Equipment functions, and the response of subscriber Equipment to the
activation of these keys, or in response to signals or data from either the
Xxxxxx System or the AWS System. Furthermore and for greater certainty, such
definition shall include without limitation, the manner in which information is
displayed on the screen of a phone used for Adopted Features, announcement tones
or messages occur, and service or feature codes that must be dialed. The origins
of the information presented to the user may be the user Equipment, or the AWS
System or the Xxxxxx System, or both.
ARTICLE II.
PROVISION OF SERVICE
2.1 Each Party shall provide, to any Authorized Roamer who so
requests, in accordance with its own ordinary requirements, restrictions,
practices, and tariffs, if applicable, and with the terms and conditions of this
Agreement, any and all types of Service that such Party provides to its own
Customers within its Service Area. At a minimum, such Service shall include
voice communications capability, as well as any other types of Service required
by this Agreement, including without limitation Article X hereof.
2.2 Notwithstanding anything in this Agreement to the contrary, a
Serving Carrier may suspend or terminate Service to an Authorized Roamer in
accordance with the terms of its own ordinary requirements, restrictions,
practices, and tariffs, if any, but such suspension or termination shall not
affect the rights and obligations of the Parties for Service furnished hereunder
prior to such termination or suspension.
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2.3 In connection with its Service to Roamers, no Serving Carrier
shall use recorded announcements or other inducements for an Authorized Roamer
to discontinue the Service of its Home Carrier or, unless otherwise authorized
herein, Roamer's use of a Serving Carrier's system.
2.4 In the event that an operating entity becomes an Affiliate of a
Party after the date of this Agreement, such Party may, upon thirty (30) days
prior written notice to the other Party, add such operating entity to Schedule 1
or Schedule 2, as the case may be, at the expiration of which thirty-day period,
(a) the Customers of such entity shall be entitled to Service as Roamers from
the other Party on the terms and conditions of this Agreement and (b) such
operating entity shall provide Service to Customers of the other Party who are
Authorized Roamers, although the other Party is not obligated to request such
Service or to require its Customers to request such Service. Notwithstanding the
foregoing, the other Party, in its reasonable discretion, may specify, by
delivering written notice thereof prior to the expiration of the thirty day
period, that any Affiliate so added shall not be entitled to preference as a
Serving Carrier as otherwise provided in Section 2.5.
2.5
2.5.1 AWS, in its capacity as Home Carrier, shall cause
substantially all of its Customers, when roaming in the markets operated by
Xxxxxx that are listed on Exhibit A, to normally seek Service as Roamers from
Xxxxxx prior to seeking Service from any other carrier. Xxxxxx, in its capacity
as Home Carrier, shall cause substantially all of its Customers, when roaming in
the markets operated by AWS that are listed on Exhibit B, to normally seek
Service as Roamers from AWS prior to seeking Service from any other carrier.
2.5.2 As a condition to the right of a Party under Section
2.5.1 to be the preferred provider of Service to Customers of the other Party,
the market being served by the Serving Carrier shall (i) have fully installed a
TDMA-based system, including all Core Features, (ii) be fully interoperable in
accordance with Sections 10.6, 10.7, and 10.8, and (iii) otherwise have met, and
be in compliance with, all terms and conditions of this Agreement.
2.5.3 Upon the addition to or deletion from Schedule 1 or 2 of
any operating entity pursuant to Section 2.4, Exhibits A and B shall
automatically be revised accordingly, except that either Party may, in its sole
discretion, specify that an addition by either Party to Schedule 1 or 2 shall
not be given effect for any or all purposes of this Section 2.5.
2.6 Xxxxxx shall join and remain a member of the North American
Cellular Network throughout the term of this Agreement.
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ARTICLE III.
RELATED SERVICES
3.1 Upon request by Xxxxxx, AWS and Xxxxxx shall consider
implementing a common System Identification Number (SID) for markets operated by
the respective Parties in the same general vicinity or taking other steps to
suppress the roaming indicator on a Customer's handset from lighting to indicate
that the Customer is roaming in such markets, but each Party may, in its sole
discretion, decide whether to implement such measure.
3.2 So long as interexchange services are offered to Xxxxxx and
those of its Affiliates listed in Schedule 2 by AT&T Corp. or one of its
Affiliates on terms that are reasonably competitive with those available
through other sources, Xxxxxx and its Affiliates listed in Schedule 2 shall
not market, offer, provide, or resell interexchange services, except (i) such
services offered by AT&T Corp. or its Affiliate or (ii) services provided
exclusively within a single home service area designated as such by Xxxxxx in
its marketing materials. All relevant factors shall be considered in
determining the competitiveness of interexchange services, including rates,
volume commitments, duration, and other terms. At anytime when Xxxxxx
believes that it can obtain such interexchange services from another
source(s) at better terms than those being offered to Xxxxxx by AT&T Corp. or
one of its Affiliates, Xxxxxx may solicit competing offers. If such offer is
made which Xxxxxx believes is better, and the relevant rates are at least 5%
less than those charged to Xxxxxx by AT&T Corp. or one of it's Affiliates,
Xxxxxx shall provide AWS with a written term sheet which specifies the
relevant rates, volume commitments, duration and other material terms of the
competing offer ("Offer Notice"). AT&T Corp. or one of its Affiliates shall
have thirty (30) days after receipt of the Offer Notice by AWS to offer to
Xxxxxx the comparable interexchange service(s) upon the same or better terms
as specified in the Offer Notice. If AT&T Corp. or one of its Affiliates make
such an offer to Xxxxxx, Xxxxxx agrees to contract with AT&T Corp. or one of
its Affiliates for any of such services acquired by Xxxxxx. If no such offer
is made by AT&T Corp. or one of its Affiliates within the required time
period, then Xxxxxx may accept the competing offer. Any claim or dispute over
the interpretation or implementation of this paragraph shall be resolved
under the provisions of paragraph 13.2 of this Agreement.
3.3 AWS and Xxxxxx agree that Xxxxxx shall participate in AWS's
National Account Program ("NAP") on substantially the terms of AWS's standard
NAP agreement, a copy of which has been provided to Xxxxxx. Promptly following
the execution of this Agreement, AWS and Xxxxxx shall negotiate in good faith
the final terms of such agreement, with the goal of executing the agreement by
August 1, 1998.
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3.4 Each Party, within the geographic areas in which such Party
provides Service, will provide Service without any additional toll charge
throughout an area (a so-called "home calling area") that is of a size at least
reasonably comparable to the area within which toll-free calls placed through
facilities that are exclusively land-based are available.
ARTICLE IV.
CUSTOMER SERVICE
4.1 The Parties shall use commercially reasonable efforts to develop
and implement systems enabling each Party, as Serving Carrier, to route to a
Customer's Home Carrier any 611 customer service call received from a Customer
of the other Party while roaming on the Serving Carrier's System.
ARTICLE V.
CHARGES
Each Home Carrier, whose Customers (including the Customers of its
resellers) receive service from a Serving Carrier as Authorized Roamers under
this Agreement, shall pay to the Serving Carrier who provided such service 100%
of the Serving Carrier's charges for CMRS and one hundred percent (100%) of the
toll charges pursuant to Exhibit C. The amount of the charges for the use of
each Serving Carrier's Service are set forth in Exhibit C attached to this
Agreement.
ARTICLE VI.
EXCHANGE OF INFORMATION
6.1 The Parties shall furnish to each other, in the format of
Exhibit D to this Agreement, the valid NPA/NXX combinations used by their
respective Customers. These combinations shall be accepted by the other Party.
Each NPA/NXX combination is and shall be within the entire line range
(0000-9999), or a specified portion thereof. The minimum line range to be
exchanged by the Parties shall be 1,000 line numbers. Each Party shall be
responsible for all xxxxxxxx otherwise properly made under this Agreement to
any number listed by such Party within the range or ranges specified by it in
Exhibit D. Additions, deletions, or changes to NPA/NXX combinations and line
number range(s) for the Home Carrier's Customers may be made upon at least
fifteen (15) days prior written notice to the Serving Carrier. Such notice
shall be in the form attached as Exhibit D to this Agreement and shall include
the requested effective date for the addition, deletion or change.
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6.2 Each Party shall provide to the other Party a list of MINs (from
among those within the NPA/NXX combination(s) identified pursuant to Section 6.1
hereof) and ESNs (of the telephones to which the other Party is not authorized
to provide Service pursuant to this Agreement), which shall be entered into the
Industry Negative File. The approved CIBERNET Negative File Guidelines, as
amended from time to time, shall be the governing criteria for the Parties.
Thereafter, from time to time, as agreed by the Parties, each Party shall notify
each other Party of all additions to, and deletions from, these lists for the
Customers of that particular Party. Such notifications shall be made during
normal business hours of the Party being notified by facsimile or by telephone
with a written confirmation and shall be effective one (1) hour after receipt.
6.3 Each Party hereby agrees to indemnify the other Party, together
with its partners and any and all of their officers, directors, employees,
agents and/or affiliates, against, and hold them harmless from, any and all
claims, suits, demands, losses and expenses, including reasonable attorneys'
fees and disbursements, which may result in any way whatsoever from the
indemnified Party's denial of Roamer or local Service to any NPA/NXX and MIN
combination which has been listed by the indemnifying Party as not being
authorized to receive Service; provided that (i) the person seeking
indemnification (the "Indemnified Person") provides notice of such claim
promptly after its discovery to the Party from which indemnification is sought
(the "Indemnifying Person") and in any event the Indemnifying Person will be
released from any obligation hereunder to the extent it is prejudiced by any
delay in the delivery of such notice, (ii) the Indemnifying Person shall have
the right to assume the defense of such claim, (iii) the Indemnified Person
shall provide such reasonable assistance and cooperation in the defense of such
claim as is requested by the Indemnifying Person, and (iv) the Indemnified
Person shall not settle or compromise any such claim without the prior written
consent of the Indemnifying Person.
6.4 Each Party, due to system limitations, may purge or delete
numbers of its Customers from the lists as referred to in Section 6.2 hereof,
but in all such cases, such purging or deletion must be done in accordance with
the approved CIBERNET Negative File Guidelines. If purging or deletion of
numbers is done prior to the time periods established by such Guidelines, or
through procedures not otherwise set forth, in the approved CIBERNET Negative
File Guidelines, the Party implementing the purge or deletion will assume
financial liability for any charges incurred by those numbers. All purges or
deletions made pursuant to this Section 6.4 shall be given through the Parties
and shall be in the form mutually agreed upon by the Parties and effective as of
the time established by the approved CIBERNET Negative File Guidelines (unless
otherwise modified by mutual agreement of the Parties.)
6.5 Upon the implementation of wireless number portability in any
portion of either the AWS System or the Xxxxxx System, the Parties shall
cooperate in establishing an alternative method for exchanging ESN, MIN, and
NPA/NXX information required to permit roaming by the other Party's Customers in
their respective systems.
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ARTICLE VII.
FRAUD
7.1 The Parties will cooperate and, as necessary, supplement this
Agreement in order to minimize fraudulent or other unauthorized use of their
systems. If any Party reasonably decides that, in its sole judgment, despite due
diligence and cooperation pursuant to the preceding sentence, fraudulent or
other unauthorized use has reached an unacceptable level of financial loss and
is not readily remediable, such Party may suspend the use of applicable NPA/NXX
combinations, in whole or in part, pursuant to the terms of this Agreement.
7.2 Each Party shall take reasonable actions to control fraudulent
Roamer usage, including without limitation using either (i) a positive
validation/verification ("PV") system provided by a mutually agreed upon
validation/verification service under which the ESN, MIN and/or NPA/NXX used in
a call in the Serving Carrier's system is compared against a list of Authorized
Roamers or (ii) SS-7 connections through a network of carriers. The Parties
shall work together in good faith to designate and implement a system as
specified in the preceding sentence and enhancements thereto or alternative
systems as they shall agree in the future. The Home Carrier shall have no
responsibility or liability for calls completed by a Serving Carrier without
obtaining positive validation/verification as required herein.
7.3 In addition to other procedures set forth in this Agreement, a
Home Carrier may notify a Serving Carrier by facsimile, with written
confirmation, that certain NPA/NXX combinations are not to receive Service. Any
calls completed using such NPA/NXX combinations made one full business day or
more after such notice has been given shall be the sole responsibility of the
Serving Carrier, and the Home Carrier shall not be charged any amount for such
calls.
7.4 Each Serving Carrier shall use commercially reasonable efforts
to provide each Home Carrier with real-time visibility of call detail records
delivered through a network compatible with AWS's network. Such information
shall be delivered within one hour of the applicable call. In the event that the
Serving Carrier provides such a real-time visibility system, the Serving Carrier
shall not be liable in any event for a temporary failure of the system unless
the Serving Carrier has been notified of such failure by the Home Carrier and
the Serving Carrier does not take commercially reasonable steps to remedy the
failure. If the Serving Carrier has been so notified and has failed to take such
commercially reasonable steps, the Serving Carrier shall be liable for all
unauthorized usage attributed to Home Carrier's subscribers during the period
from the time Serving Carrier was notified of the problem to the time that the
problem has been resolved to the reasonable satisfaction of the Home Carrier.
7.5 For purposes of notification under this Article VII, the
following addresses and facsimile numbers shall be used:
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If to AWS: AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Billing and ICS Operations
Tel. No. 000-000-0000
Fax No. 000-000-0000
If to Xxxxxx: Xxxxxx Communications Corp.
Xxxxxx Communications Corp
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx XX
Attn: Xxxx Xxxxxx
Tel. No. 000-000-0000
Fax No. 000-000-0000
Each Party may change the names, addresses and numbers set forth above
by providing notice to the other Party as provided in Article XVI below.
ARTICLE VIII.
BILLING
8.1 Each Home Carrier shall be responsible for billing to, and
collecting from, its own Customers all charges that are incurred by such
Customers as a result of service provided to them as Authorized Roamers by the
Serving Carrier. The Home Carrier shall also be responsible for billing its
Customers for, and remitting to, the Federal Government all federal excise tax
that may be due in connection with the service being billed by it to its
Customers. While the Serving Carrier will be responsible for the computation and
remittance of all state and local taxes, each Home Carrier shall be liable to
the Serving Carrier for all such state and local taxes remitted by the Serving
Carrier, for Authorized Roamers regardless of whether these amounts are paid to
the Home Carrier by its Customers.
8.2 Each Serving Carrier who provides Service to an Authorized
Roamer pursuant to this Agreement shall forward Roamer billing information,
within five business days of the call date, in accordance with the procedures
and standards set forth in the CIBER Record to the Home Carrier's Authorized
Receipt Point. CIBER Type 50 and CIBER Type 70 records shall not be accepted
without mutual signed agreement and if such mutual agreement is reached it will
be attached to this Agreement. Any future revisions of the CIBER Record or
additional record types must be mutually agreed upon before implementation. In
the event the parties use the CIBERNET Net Settlement Program, or alternative
settlement program such information must be in a format in compliance with the
CIBER Record requirements or agreed upon format.
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8.3 Where the Authorized Roamer billing information required to be
provided by the Serving Carrier in accordance with Section 8.2 above is not in
accordance with the CIBER Record, the Home Carrier may return a record to the
Serving Carrier as provided in the CIBER Record. Returning the defective record
will be in accordance with CIBER Record established procedures. The Serving
Carrier may correct the defective record and return it to the Home Carrier for
billing, provided that the time period from the date of the Service call at
issue to the receipt of the corrected record does not exceed sixty (60) days.
8.4 No credit for insufficient data or defective records shall be
permitted except as provided in Section 8.3 above, unless mutually agreed upon
by both Parties.
8.5 Each Home Carrier may at its discretion perform any necessary
edits at its Clearinghouse on incollect or outcollect call records to ensure
compliance with the terms of this Agreement.
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ARTICLE IX.
SETTLEMENT
9.1 Each Party will settle its accounts with the other Parties on
the basis of billing information received as described in this Article IX. In
the event both Parties use a net financial settlement procedure, the Parties
shall not submit a paper invoice but will make payments in accordance with such
net financial settlement procedures provided that the Parties may submit call
records for payment that relate to calls made more than sixty (60) days from the
date of the call if such call was the subject of a dispute or investigation
regarding fraudulent or unauthorized use.
9.2 If an incorrect roaming rate is charged by the Serving Carrier
to the Home Carrier, the Serving Carrier shall refund all amounts in excess of
the contract rate back to the Home Carrier within forty five days of
notification by the Home Carrier. Each carrier shall have ninety (90) days from
the end of the settlement period to invoice for amounts in excess of the
contract rate. The Home Carrier will send a collection letter within sixty (60)
days of the invoice date, within ninety (90) days of the invoice date, and
within one hundred (120) days of the invoice date. If the invoice remains unpaid
after one hundred twenty (120) days from the original invoice date, the Home
Carrier may withhold the amounts from the CIBERNET Net Settlement Program or
alternative settlement program.
9.3 In the event that either Party does not use a net financial
settlement procedure, the billing and payment for charges incurred under this
Agreement shall be as set forth below.
9.3.1 The parties shall determine amounts owed to each other
for Service provided to Roamers in one-month periods with such period beginning
on the sixteenth day of each calendar month and ending on the fifteenth day of
the following month in which Service is provided. The end of this Period shall
be referred to as "Close of Billing."
9.3.2 The Parties shall send each other an invoice for
Services used under this Agreement within fifteen (15) days after the Close of
Billing.
9.3.3 Each invoice shall contain the following information.
a. Billing period used by Serving Carrier
b. Batch sequence number
c. Serving and Home Carrier System Identification
Number
d. Air Service charges
e. Total toll charges (both intrastate and
interstate)
f. All other charges and credits
g. Total taxes
h. Total charges
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9.3.4 Payment on such invoices shall be made in the form of a
check or a wire transfer which must be received by the invoicing party within
thirty (30) days from the date of the invoice. Late payments shall be charged
with a late payment fee of one and one half percent (1.5%) of the outstanding
balance for each thirty-day period (or portion thereof) that such payments are
late.
9.3.5 Each Party may offset the amount owed to the other Party
under this Agreement and a single payment of the balance to the Party entitled
to receive such balance shall be made.
9.4 If the Serving Carrier provides pre-call validation of the Home
Carrier's Customers, the Home Carrier agrees to implement Negative File
Suppression at the Clearinghouse and the CIBERNET Negative File Guidelines and
procedures do not apply.
ARTICLE X.
INTEROPERABILITY
10.1 The Parties agree that their respective obligations under this
Agreement related to the interoperability of the AWS System and the Xxxxxx TDMA
System shall be construed in accordance with the following general principles:
10.1.1 The Parties agree, confirm and acknowledge that one of
their primary objectives in entering into this Agreement is to promote the
establishment and operation throughout the United States of a mobile wireless
service that is TDMA-based and that will appear to their respective subscribers
as a single mobile wireless network with a common User Interface pertaining to
the Adopted Features, and that they intend to achieve such purpose and objective
as set forth in, and subject to the terms and conditions of, this Agreement.
Core Features and Future Core Features, once implemented, shall be made
available to all Customer's of a Party when roaming in the AWS System or the
Xxxxxx TDMA System, subject to the terms of this Agreement. Each Party shall use
good faith efforts, when implementing any software or other System change or
upgrade, to confirm the continued availability of the Feature interoperability
provided for herein, and in the event of any interference with any Feature
interoperability shall work expeditiously to restore required functionality.
Without limiting the generality of the foregoing, in the event the
Authentication Fraud Protection Feature (or any subsequent or comparable fraud
protection Feature) is disabled or affected by any network change so as to
interfere with its interoperability, the Party responsible for such network
shall restore interoperability within 48 hours of notification from the affected
Party.
10.1.2 The Parties agree that each of their respective
obligations, duties, rights and entitlements pursuant to this Agreement shall be
interpreted, to the extent such interpretation is required to resolve any
dispute or uncertainty concerning this Agreement, in a manner that is reasonably
consistent with, and which reasonably supports, the purpose and objective of
this Agreement as set out in Section 10.1.1.
14
10.1.3 The Parties agree that they each shall, in good faith,
work together, cooperate, and use the rights that they each have granted the
other under this Agreement for the purposes set out in Section 10.1.1 and on the
terms and conditions of this Agreement.
10.1.4 Any entity listed on Schedule 1 but in which AT&T
Wireless owns, directly or indirectly, less than a majority interest or which
AT&T Wireless otherwise does not control shall, at the option of AT&T Wireless,
not be subject to the requirements of this Article
10.2 The Parties agree to implement TDMA-based systems as follows:
10.2.1 The Parties each acknowledge and confirm that their
digital standard for, in the case of AWS, the AWS System and, in the case of
Xxxxxx, the Xxxxxx TDMA System, is currently (as of the Effective Date) TDMA. In
addition, Xxxxxx shall maintain its commitment to TDMA as Xxxxxx'x digital
standard for the Xxxxxx TDMA System on Exhibit A for so long as, and to the
extent that, AWS maintains its commitment to TDMA as AWS's digital standard. AWS
agrees that in the event it may exercise its discretion to no longer remain
committed to TDMA as its digital standard, it shall inform Xxxxxx of that
decision by no later than six months prior to the implementation of any
non-compatible interface. Upon the implementation of any such non-compatible
interface, the following Sections of this Agreement shall immediately terminate:
Sections 10.1.1, 10.2.2, and 10.2.3.
10.2.2 Xxxxxx shall deploy TDMA throughout the Xxxxxx TDMA
System within twelve (12) months after the date of this Agreement. Xxxxxx shall
use commercially reasonable efforts to promote the use of TDMA-based
communications devices among its Customers who roam on the AWS System.
10.2.3 Notwithstanding any other provision of this Section
10.2, the Parties acknowledge that certain outlying portions of their respective
service areas may receive only digital control channels and not digital voice
service.
10.3 Each of the Parties agrees that it shall operate and support its
TDMA-based System, to the extent installed, to ensure that the other Party's
Customers can use the Adopted Features when roaming on the Serving Carrier's
TDMA-based System in the same manner that such Customers use such Adopted
Features on the Home Carrier's TDMA-based System.
10.3.1 Each Party shall, at its own expense, implement the Core
Features in the AWS System, in the case of AWS, and in the Xxxxxx TDMA System,
in the case of Xxxxxx, within one (1) year after the Effective Date. Thereafter,
Core Features shall be implemented at the time any TDMA-based system is placed
into operation.
15
10.3.2 The Future Core Features shall be those features that
are agreed upon by the Parties from time to time after the execution of this
Agreement. Each Party shall, at its own expense, implement such Future Core
Features within one (1) year after the General Availability of such Future Core
Features, provided that, and subject to such Party's determination, in its sole
and absolute discretion, that such implementation is both financially feasible
and economically viable, and consistent with such Party's objective of
maximizing its financial performance. In the event that a Party opts not to
adopt a Future Core Feature in accordance with this Section 10.3.1, it shall
promptly notify the other Party of that decision. Future Core Features shall be
implemented in accordance with this Section in the areas specified for each
respective Party in Section 10.3.1.
10.3.3 Each Party shall have the right, in its sole discretion
to adopt and implement (at such Party's own expense) Additional Features, but
the other Party shall have no obligation to support any Additional Features.
10.3.4 The Parties shall use commercially reasonable efforts to
comply with the network Standards with respect to the Core Features and Future
Core Features that are set out in Schedule E-2 to Exhibit E attached hereto. The
sole remedies available to a Party (the "Affected Party") for the failure by the
other Party to comply with this Section 10.3.4 shall be (a) to suspend, for so
long as such noncompliance continues in effect, the Affected Party's obligation
under Section 2.5 to treat the other Party as the preferred provider of roaming
services in the market(s) in which such noncompliance arises and (b) in the
event such noncompliance continues for ninety (90) days or more, to permanently
terminate such preferred provider status in such market(s). This limitation of
remedies shall not limit in any way the remedies available to a Party for
noncompliance by the other Party with any other provision of this Agreement,
whether or not such noncompliance is a result of the same circumstances that
result in noncompliance with this Section.
10.4 Neither Party shall provide the other Party's Customers with
Service inferior in quality to that provided to its own Customers. Each Party
shall provide Service to Customers of the other Party of a quality level, based
on criteria customarily used to evaluate the performance of wireless voice
systems, comparable to or exceeding industry norms. Any assessment of "quality"
shall be with reference to the System's performance as a whole within a specific
MSA, RSA, or BTA, as the case may be, and shall be over such a period of time as
reasonably necessary to yield an accurate depiction of System "quality" taking
into account all of the variables which may affect System performance.
10.5 In order to facilitate performance by each of the Parties of
their obligations under this Article X, the Parties agree to exchange and share
information with each other as follows, except that nothing contained herein
shall be construed to require a Party to exchange information that the Party
considers confidential or proprietary.
16
10.5.1 Subject to Article XVII of this Agreement, the Parties
shall provide each other, on a reasonably prompt basis, with all information and
materials that either has a right to disclose that is necessary to meet the
interoperability standards set forth in this Article X, including without
limitation the following information:
System Engineering:
- Minimum Standards for Systems
Features:
- Capability description of present Core Features and other
Features
- User Interface (codes)
- Implementation procedures
- Roaming requirements
- Feature functionality design documents
Research and Development:
- operational test results
- operational defects and bugs
- remedial/back-up plans
- operational, functional and technical specifications
- all related documentation
- systems integration
10.5.2 Each Party agrees that it shall, in performing its
obligations to provide the other Party with information in accordance with
Section 10.5, act reasonably, and in good faith toward the other Party.
10.5.3 Nothing contained herein is intended or should be
construed to constitute the transfer or grant by one Party to the other of any
ownership, license, or other rights of or to any trade secret, know-how, or
other intellectual property by one Party to the other.
10.6 Each Party shall provide for automatic call delivery for
Customers of the other Party who are Roamers in such Party's system. To this
end, each Party shall continuously provide the hardware, software and
transmission facilities required for such call delivery either directly between
the systems of the Parties or indirectly through a separate network of wireless
communications carriers. The hardware, software and transmission facilities
provided by each Party hereunder shall at all times be operated and maintained
to provide the most efficient level of service that is technically feasible and
commercially reasonable to minimize transmission errors and Service
interruptions.
17
10.7 If the Parties have implemented linking facilities as
contemplated in Section 10.8, the Serving Carrier shall automatically hand-off
to the Home Carrier, and as requested shall automatically accept hand-off from
the Home Carrier in order to provide Service as specified in Article II, calls
to or from a Customer of the Home Carrier in accordance with the hand-off
procedures established for such linking facilities. To this end, each Party
shall continuously provide the hardware, software and transmission facilities
required for such call hand-off either directly between the systems of such Home
and Serving Carrier or indirectly through a separate network of wireless
communications carriers. The hardware, software and transmission facilities
provided by each Party hereunder shall at all times be operated and maintained
to provide the most efficient level of service that is technically feasible and
commercially reasonable to minimize transmission errors and Service
interruption.
10.8 The Parties will work together to evaluate the economic
advantage of various switch linking options to interconnect and facilitate
networking of the Parties' respective Systems as required by this Agreement.
Should the Parties agree to install and maintain linking facilities, the cost of
the linking facilities shall be allocated pursuant to, the following provisions:
10.8.1 AWS and Xxxxxx will each pay one-half of the equipment
costs for the establishment of microwave facilities to link the Parties'
respective Systems for the purposes of automatic call delivery and automatic
call hand-off. Each Party is solely responsible for the costs of preparing its
own facilities for the System link.
10.8.2 Equipment costs for the establishment of a landline link
(T-1) to link the Parties' respective Systems together for these purposes shall
be split between the Parties as follows:
(a) AWS and Xxxxxx shall each pay one-half of the
cost for the installation, use, modification, or discontinuance of the linking
facilities. Each party is solely responsible for all costs to prepare its own
facilities for the link between the Systems.
(b) For ease of administration, AWS will order and
be the customer of record ("COR") for such facilities. Xxxxxx will reimburse AWS
monthly for its share of the recurring costs of such facilities. The COR shall
be responsible for invoicing the other Party for its share of the costs, with
payment due within 30 days of receipt of the invoice.
10.8.3 The Parties agree that this Section 10.8 relates only to
those costs necessary to establish the referenced facilities. This section is
not applicable to the allocation of costs with respect to the provision of
service for each Parties Customers.
10.9 The Parties acknowledge that they do not currently have the
technical systems in place to allocate charges for cellular service provided by
a Carrier when a Customer's call is handed off from one System to another. The
Parties agree that the revenues and costs for a call belong to the Party whose
System operates the originating cell site (the "Xxxx and Keep System").
18
ARTICLE XI.
REPRESENTATIONS AND WARRANTIES
11.1 AWS hereby represents and warrants to Xxxxxx that:
11.1.1 AT&T Wireless is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware. AT&T
Wireless has all requisite power and authority to execute and deliver this
Agreement and to cause this Agreement to be the binding obligation, to the
extent provided herein, of those of its Affiliates listed on Schedule 1 or added
to Schedule 1 hereafter in accordance with Section 2.4.
11.1.2 This Agreement is the legal, valid, and binding
obligation of AT&T Wireless, enforceable against AT&T Wireless in accordance
with its terms, except that such enforceability may be subject to (a)
bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b) equitable
principles of law and the discretion of any court or arbitral body before which
any related proceeding may be brought.
11.1.3 The execution, delivery, and performance of this
Agreement by AT&T Wireless does not and will not conflict with or result in a
material default, suspension, or termination of any agreement, contract,
obligation, license, or authorization with or granted by any third party or
governmental body.
11.2 Xxxxxx hereby represents and warrants to AWS that:
11.2.1 Xxxxxx is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Oklahoma. Xxxxxx
has all requisite power and authority to execute and deliver this Agreement and
to cause this Agreement to be the binding obligation, to the extent provided
herein, of those of its Affiliates listed on Schedule 2 or added to Schedule 2
hereafter in accordance with Section 2.4.
11.2.2 This Agreement is the legal, valid, and binding
obligation of Xxxxxx, enforceable against Xxxxxx in accordance with its terms,
except that such enforceability may be subject to (a) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) equitable principles of law and
the discretion of any court or arbitral body before which any related proceeding
may be brought.
19
11.2.3 The execution, delivery, and performance of this
Agreement by Xxxxxx does not and will not conflict with or result in a material
default, suspension, or termination of any agreement, contract, obligation,
license, or authorization with or granted by any third party or governmental
body.
ARTICLE XII.
TERM, TERMINATION AND SUSPENSION OF AGREEMENT
12.1 This Agreement shall have a term commencing on the Effective
Date and continuing for a period of five (5) years. Thereafter, this Agreement
shall continue in force on a month-to-month basis unless either party terminates
the Agreement by written notice to the other party given at least 90 days prior
to the date of termination. Otherwise, this Agreement may be terminated or
suspended only as provided in this Article XII.
12.2 This Agreement may be terminated or suspended by either Party
immediately upon written notice to the other of a Default (as defined in Section
13.1) by the other Party. In addition, either Party may suspend this Agreement
immediately upon written notice to the other Party pursuant to Section 13.1.1 of
the existence of a breach of this Agreement, whether or not such breach
constitutes a Default, which materially affects the Service being provided to
Customers of the non-breaching Party. While any suspension of this Agreement,
whether in part or in whole, is in effect the obligations of the Parties shall
be only those that survive termination and to work together to resolve as
expeditiously as possible any difficulty that resulted in a suspension. At such
time as the Party originally giving notice of suspension concludes that the
problem causing the suspension has been resolved, that Party shall give to the
other written notice to this effect. This Agreement shall resume in full effect
within five (5) business days after the Parties have mutually agreed that the
problem has been resolved.
12.3 The Parties shall cooperate to limit the extent and effect of
any suspension of this Agreement to what is reasonably required to address only
the cause of such suspension.
12.4 In the event that a Party transfers control of an Affiliate
listed in Schedule 1 or Schedule 2, as the case may be, the Party shall provide
at least four months' prior written notice to the other Party and upon such
transfer such Affiliate shall be deleted from the appropriate Schedule, but
doing so will not relieve a Party of its obligations under Section 14.1.
12.5 The termination or suspension of this Agreement shall not affect
the rights and liabilities of the Parties under this Agreement with respect to
all Authorized Roamer charges incurred prior to the effective date of such
termination or suspension.
20
ARTICLE XIII.
DEFAULT
13.1 A Party will be in "Default" under this Agreement upon the
occurrence of any of the following events:
13.1.1 Material breach of any material term of this Agreement,
if such breach shall continue for fifty (30) days after receipt of written
notice thereof from the nonbreaching Party;
13.1.2 Voluntary liquidation or dissolution or the approval by
the management, board of directors, stockholders, or owners of a Party of any
plan or arrangement for the voluntary liquidation or dissolution of the Party;
13.1.3 A final order by the FCC revoking or denying renewal of
CMRS licenses or permits granted to such Party which, individually or in the
aggregate, are material to the business of such Party; or
13.1.4 Such Party (i) filing pursuant to a statute of the
United States or of any state, a petition for bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee for all or a
portion of such Party's property, (ii) has filed against it, pursuant to a
statute of the United States or of any state, a petition for bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
for all or a portion of such Party's property, provided that within sixty (60)
days after the filing of any such petition such Party fails to obtain a
discharge thereof, or (iii) making an assignment for the benefit of creditors or
petitioning for, or voluntarily entering into, an arrangement of similar nature,
and provided that such filing, petition, or appointment is still continuing.
13.2 All claims and disputes relating in any way to the performance,
interpretation, validity, or breach of this Agreement, including but not limited
to a claim based on or arising from an alleged tort, shall be resolved as
provided in this Section 13.2. It is the intent of the Parties that any
disagreements be resolved amicably to the greatest extent possible.
13.2.1 If a disagreement cannot be resolved by the
representatives of the Parties with day-to-day responsibility for this
Agreement, such matter shall be referred to an executive officer of each of the
Parties. The executive officers shall conduct face-to-face negotiations at a
neutral location or such other location as shall be mutually agreed upon. If
these representatives are unable to resolve the dispute within ten business days
after either Party requests the involvement of the executive officers, then
either Party may, but is not required to, refer the matter to mediation or
arbitration, as applicable in accordance with Sections 13.2.2 and 13.2.3.
13.2.2 In any case where the amount claimed or at issue is One
Million Dollars ($1,000,000) or more and the Parties are unsuccessful in
resolving the disagreement, the Parties
21
agree to submit the disagreement to non-binding mediation upon written
notification by either Party. The Parties shall mutually select an independent
mediator experienced in telecommunications system disputes. The specific format
for the mediation shall be left to the discretion of the mediator. If mediation
does not result in resolution of the disagreement within thirty days of the
initial request for mediation, then either Party may, but is not required to,
refer the matter to arbitration.
13.2.3 Any disagreement not finally resolved in accordance with
the foregoing provisions of this Section 13.2 shall, upon written notice by
either Party to the other, be resolved by final and binding arbitration. Subject
to this Section 13.2.3, such arbitration shall be conducted through, and in
accordance with the rules of, JAMS/Endispute. A single neutral arbitrator shall
decide all disputes. Each Party shall bear its own expenses with respect to the
arbitration, except that the costs of arbitration proceeding itself, including
the fees and expenses of the arbitrator, shall be shared equally by the Parties.
The arbitration shall take place in a neutral location selected by the
arbitrator. The arbitrator may permit discovery to the full extent permitted by
the Federal Rules of Civil Procedure or to such lesser extent as the arbitrator
determines is reasonable. The arbitrator shall be bound by and strictly enforce
the terms of this Agreement. The arbitrator shall make a good faith effort to
apply applicable law, but an arbitration decision and award shall not be subject
to review because of errors of law. The arbitrator shall have the sole authority
to resolve issues of the arbitrability of any disagreement, including the
applicability or running of any applicable statute of limitation. The arbitrator
shall not have power to award damages in connection with any dispute in excess
of actual compensatory damages nor to award punitive damages nor any damages
that are excluded under this Agreement and each party irrevocably waives any
claim thereto. The award of any arbitration shall be final, conclusive and
binding on the Parties. Judgement on the award may be entered in any court
having jurisdiction over the Party against which the award was made. Nothing
contained in this Section 13.2.3 shall be deemed to prevent either party from
seeking any interim equitable relief; such as a preliminary injunction or
temporary restraining order, pending the results of the arbitration. The United
States Arbitration Act and federal arbitration law shall govern the
interpretation, enforcement, and proceedings pursuant to the arbitration clause
in this Agreement.
ARTICLE XIV.
SUCCESSORS AND ASSIGNS
14.1 Neither Party may, directly or indirectly, sell, assign,
transfer, or convey its interest in this Agreement or any of its rights or
obligations hereunder, including any assignment or transfer occurring by
operation of law, without the written consent of both Parties, except that (i)
either Party may assign or delegate this Agreement or any of its rights or
obligations hereunder to an Affiliate of such Party without the consent of the
other Party, but such assignment or delegation will not relieve the Party of any
of its obligations hereunder and (ii) a Party may assign its rights and
obligations hereunder to an assignee of its Service license or permit issued by
the EEC, provided that such assignee expressly assumes, by written instrument
22
approved in writing by the other Party, all of the obligations of such Party
hereunder and thereby becomes a Party hereunder. In no event will an assignment
permitted under this Section 14.1 without the consent of the other Party
obligate a Serving Carrier to provide Service to Customers of the assignee or
any of its Affiliates other than Customers residing in the area in which the
assignor previously was licensed to provide Service.
14.2 No person other than a Party to this Agreement shall acquire any
rights hereunder as a third-party beneficiary or otherwise by virtue of this
Agreement.
ARTICLE XV.
NO PARTNERSHIP OR AGENCY RELATIONSHIP IS CREATED
Nothing contained in this Agreement shall constitute the Parties as
partners with one another or render any Party liable for any debts or
obligations of any other Party, nor shall any Party hereby be constituted the
agent of the other Party.
ARTICLE XVI.
NOTICES AND AUTHORIZED REPRESENTATIVES
Unless otherwise provided herein, any notice, request, instruction or
other document to be given hereunder by any Party to the other shall be in
writing and delivered by hand delivery, certified mail (postage prepaid, return
receipt requested), facsimile, or overnight air delivery service, as follows:
If to AWS, to: AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Intercarrier Services
with a copy to: AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Legal Department
If to Xxxxxx, to: Xxxxxx Cellular Systems, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
23
or such other address as any Party may from time to time furnish to the other
Party by a notice given in accordance with the terms of this Section. All such
notices and communications shall be deemed to have been duly given at the time
delivered by hand, if personally delivered; three business days after being
deposited in the mail, if mailed; when receipt is confirmed, if by facsimile and
received by 3:00 p.m. local time on any business day and otherwise on the next
business day; and the next business day if sent by overnight air delivery
service.
ARTICLE XVII.
CONFIDENTIALITY
17.1 Each Party shall, and shall cause each of its Affiliates and
each of its and their employees, agents, and contractors, to keep confidential
and not use for any purpose except as contemplated by this Agreement, any and
all information and know-how provided to it by the other Party which is
identified in writing as confidential ("Confidential Information").
Identification of information as confidential shall, in the case of information
delivered in tangible form, appear on at least the face or first page of such
information and, in the case of information communicated verbally, be given
verbally contemporaneously with the delivery of the information and confirmed in
writing within five business days thereafter. Notwithstanding the foregoing, the
following information shall be treated as Confidential Information without any
further identification as such: (i) The terms, but not including the mere
existence, of this Agreement; and (ii) all information exchanged pursuant to
Article VI.
17.2 Notwithstanding Section 17.1, a Party shall have no obligation
to keep confidential any information that (a) was rightly in the receiving
Party's possession before receipt from the disclosing Party, (b) is or becomes a
matter of public knowledge without violation of this Agreement by the receiving
Party, (c) is rightfully received by the receiving Party from a third party
rightfully in possession of and, to the best of the receiving Party's knowledge,
with a right to make an unrestricted disclosure of such information, (d) is
disclosed by the disclosing Party to a third party without imposing a duty of
confidentiality on the third party, or (e) is independently developed by the
receiving Party without the use of any Confidential Information. In addition, a
Party may disclose any Confidential Information to the extent required by
applicable law or regulation or by order of a court or governmental agency;
provided, that prior to disclosure the Party shall use all reasonable efforts to
notify the other Party of such pending disclosure and shall provide any
reasonable assistance requested by the other Party to maintain the
confidentiality of the information.
17.3 The Parties agree that a Party will not have an adequate remedy
at law in the event of a disclosure or threatened disclosure of Confidential
Information in violation of this Article XVII. Accordingly, in such event, in
addition to any other remedies available at law or in equity, a Party shall be
entitled to specific enforcement of this Article XVII and to other injunctive
and equitable remedies against such breach without the posting of any bond.
24
17.4 The obligations under this Article XVII shall survive the
termination of this Agreement for a period of three years.
ARTICLE XVIII.
MISCELLANEOUS
18.1 The Parties agree to comply with, conform to, and abide by all
applicable and valid laws, regulations, rules and orders of all governmental
agencies and authorities, and agree that this Agreement is subject to such laws,
regulations, rules and orders. All references in this Agreement to such laws,
regulations, rules and orders include any successor provision. If any amendment
to or replacement of the same materially alters the benefits, rights, and duties
of the Parties hereunder, the Parties agree to negotiate in good faith an
amendment to this Agreement to restore the respective positions of the Parties
to substantially the same point as existed prior to such amendment or
replacement.
18.2 The Parties agree to use their respective best, diligent, and
good faith efforts to fulfill all of their obligations under this Agreement. The
Parties recognize, however, that to effectuate all the purposes of this
Agreement, it may be necessary either to enter into future agreements or to
amend this Agreement, or both. In that event, the Parties agree to negotiate
with each other in good faith.
18.3 This Agreement constitutes the full and complete agreement of
the Parties with respect to the subject matter hereof. Any prior agreements
among the Parties with respect to this subject matter, including without
limitation the Intercarrier Services Agreements dated as of October 16, 1991 and
June 16, 1997, are hereby superseded. This Agreement may not be amended, except
by the written consent of the Parties. Waiver of any breach of any provision of
the Agreement must be in writing signed by the Party waiving such breach or
provision and such waiver shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision. The failure of a Party to
insist upon strict performance of any provision of this Agreement or any
obligation under this Agreement shall not be a waiver of such Party's right to
demand strict compliance therewith in the future.
18.4 The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret, define or limit
the scope, extent or intent of this Agreement or any provision thereof.
18.5 This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same Agreement.
18.6 This Agreement shall be construed in accordance with the
internal laws of the State of Delaware without reference to the choice of law
principles, except as subject to the United States Arbitration Act and the
Federal Communications Act.
25
18.7 Except for claims by third parties which fall within the scope
of a Party's indemnification obligations, neither Party shall be liable to the
other Party for any special, indirect, consequential, or punitive damages.
18.8 The Parties agree that they will not use the name, service marks
or trademarks of the other party or any of its Affiliates in any advertising,
publicity releases or sales presentations, without such Party's written consent.
Neither Party is licensed hereunder to conduct business under any logo,
trademark, service or trade name (or any derivative thereof) of the other Party.
18.9 No Party shall make any public statement or issue any press
release concerning the terms of this Agreement except as necessary to comply
with requirements of any law, regulation, or the order or judgment of a court or
tribunal of competent jurisdiction. If any such public statement or release is
so required, and AWS and Xxxxxx mutually agree to such statement or release, the
Party making such disclosure shall consult with the other Party prior to making
such statement or release and the Party shall use all reasonable efforts, act in
good faith, to agree upon a text for such statement or release which is
satisfactory to AWS and Xxxxxx. Nothing contained herein is intended to limit
the ability of the Parties to make statements regarding the availability to such
Party's Customers of the Services to be provided hereunder by the other Party or
that such other Party is the provider of such Services.
18.10 Neither of the Parties will be liable for nonperformance or
defective performance of its obligations under this Agreement to the extent and
for such periods of time as such nonperformance or defective performance is due
to reasons outside such Party's control, including, without limitation, acts of
God, war, acts of any governmental authority, riots, revolutions, fire, floods,
explosions, sabotage, nuclear incidents, lightning, weather, earthquakes,
storms, sinkholes, epidemics, strikes, or delays of suppliers or subcontractors
for the same causes. Neither Party shall be required to settle any labor dispute
or other third party dispute in any manner which is deemed by that Party to be
less than totally advantageous, in that Party's sole discretion.
18.11 Except as specifically provided herein, this Agreement is a
non-exclusive arrangement between the Parties and nothing contained in this
Agreement is intended or should be construed to preclude or limit a Party from
obtaining from or providing to a third party Service of a type available or
required to be provided under this Agreement.
26
EXECUTED as of the date first written above.
AT&T WIRELESS SERVICES, INC. XXXXXX CELLULAR SYSTEMS, INC.
By: /s/ Xxx Xxxxx By: /s/ G. Xxxxxx Xxxxx
------------------------------- ---------------------------------
Name: Xxx Xxxxx Name: G. Xxxxxx Xxxxx
----------------------------- ------------------------------
Title: Vice President - Title: President
Carrier Relations ------------------------------
Date: 7/8/98 Date: 8/14/98
----------------------------- -------------------------------
27
SCHEDULE 1
AT&T WIRELESS SERVICES, INC. AND ITS AFFILIATES
28
Schedule 1: AT&T Wireless Services, Inc. and its Affiliates [LOGO]
MKT # MARKET SID/BID OPERATING ENTITY/LICENSEE
----- ------ ------- -------------------------
AT&T WIRELESS MARKETS - 850 MHZ ANALOG/DIGITAL PROPERTIES
---------------------------------------------------------
ALASKA 187 Anchorage 251 Cellular Alaska Xxxxxxxxxxx
000 Xxxxxx-0 XXX Xxxxxxxx 00000 AT&T Wireless Services of Alaska, Inc.
CALIF. 215 Chico 311 AT&T Wireless Services of California, Inc.
74 Fresno 153 AT&T Wireless Services of California, Inc.
142 Modesto 30357 AT&T Wireless Services of California, Inc.
73 Oxnard-Ventura 30065 AT&T Wireless Services of California, Inc.
254 Redding 513 Redding Cellular Partnership
35 Sacramento 129 AT&T Wireless Services of California, Inc.
107 Stockton 233 AT&T Wireless Services of California, Inc.
150 Visalia 30363 Visalia Cellular Telephone Company
000 Xxxx Xxxx 00000 Xxxx Xxxx Cellular Telephone Company
124 Santa Xxxxxxx 531 Santa Xxxxxxx Cellular Systems, Ltd.
338 California - 3 RSA 233 AT&T Wireless Services of California, Inc.
343 California - 8 RSA 30859 AT&T Wireless Services of California, Inc.
347 California - 12 RSA 153 AT&T Wireless Services of California, Inc.
CONNECTICUT 357 CT-1 (Litchfield) 0000 Xxxxxxxxxx Acquisitions Corporation
COLO. 000 Xxxxxxxx Xxxxxxx 00000 AT&T Wireless Services of Colorado, Inc.
19 Denver 45 AT&T Wireless Services of Colorado, Inc.
000 Xxxx Xxxxxxx 00000 Xxxx Xxxxxxx-Xxxxxxxx Cellular Telephone Co.
243 Greeley 30751 Greeley Cellular Telephone Company
350 Colorado - 3 RSA
(Vail/Grand Junction) 30989 AT&T Wireless Services of Colorado, Inc.
FLORIDA 211 Bradenton 30853 Bradenton Cellular Partnership
146 Daytona Beach 325 AT&T Wireless Services of Florida, Inc.
51 Jacksonville 75 AT&T Wireless Services of Florida, Inc.
000 Xxxxxxxxx 00000 Xxxxxxxxx Cellular Telephone Company
12 Miami, Key West 37, 30277 AT&T Wireless Services of Florida, Inc.
245 Ocala 30063 Ocala Cellular Telephone Company, Inc.
60 Orlando 175 AT&T Wireless Services of Florida, Inc.
167 Sarasota 30849 Sarasota Cellular Telephone Company
22 Tampa 30283 AT&T Wireless Services of Florida, Inc.
000 XX-0 Xxxxxx - Xxxxxxxxxxx 00000 AT&T Wireless Services of Florida, Inc.
000 XX-0 Xxxxxx 37 Talcom, Inc.
000 Xxxx Xxxxxx, Vero Beach,
Sebastian 37, 30281, 30309 AT&T Wireless Services of Florida, Inc.
114 Lakeland 37 AT&T Wireless Services of Florida, Inc.
00 Xxxx Xxxx Xxxxx 37 AT&T Wireless Services of Florida, Inc.
370 FL-11 AT&T Wireless Services of Florida, Inc.
364 FL-5 Flagler (A2) Talcom, Inc.
HAWAII 386 Hawaii - 2 RSA (Maui) 1159 AT&T Wireless Services of Hawaii, Inc.
IDAHO 190 Boise 289 Boise City Cellular Partnership
000 Xxxxx - 0 XXX (Xxxxxx) 00000 AT&T Wireless Services of Idaho, Inc.
Page 1
Schedule 1: AT&T Wireless Services, Inc. and its Affiliates [LOGO]
MKT # MARKET SID/BID OPERATING ENTITY/LICENSEE
----- ------ ------- -------------------------
LOUISIANA 219 Monroe 463 Monroe Cellular, Inc.
100 Shreveport 229 First Cellular Group of Shreveport, Inc.
000 XX- 0 X0 Xxxxxx Cellular, Inc.
456 LA- 3 A3 First Cellular Group of Shreveport, Inc.
MINN. 15 Minneapolis 23 AT&T Wireless Services of Minnesota, Inc.
288 Rochester, Austin 30233, 26321 Rochester CellTelCo
000 Xx. Xxxxx 00000 Xx. Xxxxx Cellular Telephone Company, Inc.
MISSOURI 163 Springfield 559 MC Cellular Corporation, Inc.
239 Joplin 30069 MC Cellular Corporation, Inc.
517 Missouri - 14 RSA (Monet) 30071 Auburn Television Group, Inc.
NEVADA 93 Las Vegas 211 AT&T Wireless Services of Nevada, Inc.
171 Reno 515 Reno Cellular Telephone Company
545 Nevada - 3 RSA (Xxxxxx City) 30855 AT&T Wireless Services of Nevada, Inc.
NEW JERSEY 550 Hunterdon (NJ-1) 1487 NJ Cellular, Inc.
NEW YORK 1 New York 25 Cellular Telephone Company
OKLA. 260 Lawton, OK 425 OK-5 Cellular, Inc.
45 Oklahoma City 169 Midwest Cellular Telephone Ltd Xxxx
00 Xxxxx 000 AT&T Wireless Services of Tulsa, Inc.
598 OK-3 Grant 30919 OK-3 Cellular, Inc.
599 OK-4 Nowata AT&T Wireless Services, Inc.
600 OK-5 1585 OK-5 Cellular, Inc.
OHIO 199 Steubenville/Weirton 30317 McLang Cellular Inc.
000 Xxxxxxxxxxxx, Xx Xxxxxxxxxxx 00000, 30889 McLang Cellular Inc.
OREGON 135 Eugene 61 AT&T Wireless Services of Oregon, Inc.
229 Medford 30867 Medford Cellular Telephone Company, Inc.
30 Portland 61 AT&T Wireless Services of Oregon, Inc.
148 Salem 30869 Salem Cellular Telephone Company
607 Oregon 2 - Madras 31011 Pueblo Cellular Communications, Inc.
607 Oregon 2 - The Dalles 30293 Pueblo Cellular Communications, Inc.
607 Hood River 1601 Pueblo Cellular Communications, Inc.
PENN. 143 Johnstown, Somerset 30051, 30971 XxXxx Communications of Johnstown, Inc.
13 Pittsburgh 39 Pittsburgh Cellular Telephone Company
TEXAS 9 Dallas 33 Metroplex Telephone Company
75 Austin 107 Texas Cellular Telephone Company Ltd Partnership
000 XX-00 Xxxxxxxx 0000 Xxxxxxxxx Xxxxx Cellular Telephone Company
000 Xxxxx/Xxxxxxx Xxxxxxx 000 Xxxxx Cellular Telephone Company Ltd Partnership
Page 2
Schedule 1: AT&T Wireless Services, Inc. and its Affiliates [LOGO]
MKT # MARKET SID/BID OPERATING ENTITY/LICENSEE
----- ------ ------- -------------------------
657 TX- 6 Xxxx 00000 XxXxx Xxxxxxxxxxxxxx xx Xxxxxxxxxxx, Xx, Inc.
160 Killeen-Temple 409 Texas Cellular Telephone Company Ltd Partner
206 Longview-Xxxxxxxx 30473 Longview Cellular, Inc.
661 Tx - 10 Xxxxxxx 1709,30953,30969 AT&T Wireless Services, Inc.
668 Tx - 17 Xxxxxx 1723 Texas Cellular Telephone Company Ltd Partner
33 San Antonio 151 AT&T Wireless Services of San Antonio, Inc.
292 Xxxxxxx-Xxxxxxx 30635 Texas Cellular Telephone Company Ltd Partner
240 Texarkana 30475 Texarkana Cellular Partnership
237 Tyler 000 Xxxxxxxxx Xxxxx Cellular Telephone Company
000 Xxxx 000 Xxxxx Cellular Telephone Company Ltd Partner
000 Xxxxxxx Xxxxx, XX 000 Xxxxxxx Xxxxx XxxxXxxXx
000 Xxxxxxxxx/Xxxxxxx Xxxx 30773, 30843
UTAH 159 Xxxxx 00000 Xxxxx Cellular Telephone Company
39 Salt Lake City 91 AT&T Wireless Services of Utah, Inc.
673 Utah - 1 RSA (Box Elder) 91 AT&T Wireless Services of Utah, Inc.
WASH. 000 Xxxxxxxxxx 00000 Xxxxxxxxxx Cellular Partnership
000 Xxxxxxxxx 00000 Xxxxxxxxx Cellular Telephone Company
242 Olympia 30875 Olympia Cellular Telephone Company, Inc.
20 Seattle 47 AT&T Wireless Services of Washington, Inc.
20 Kirkland 26345 AT&T Wireless Services of Washington, Inc.
109 Spokane 231 Spokane Cellular Telephone Company
82 Tacoma 47 AT&T Wireless Services of Washington, Inc.
191 Yakima 30227 Yakima Cellular Telephone Company
699 Skamania Pueblo Cellular Communications, Inc.
693 WA - 1 Calallam AT&T Wireless Services of Washington, Inc.
698 WA - 6 Xxxxxxxx XX 00000 AT&T Wireless Services of Washington, Inc.
698 WA - 6 Xxxxxxxx XX 00000 AT&T Wireless Services of Washington, Inc.
697 WA - 5 Xxxxxxxxxx/Xxxxx Xxxxx 00000 AT&T Wireless Services of Washington, Inc.
000 Xxx Xxxxxx XX 00000 AT&T Wireless Services of Washington, Inc.
WEST VA. 178 Wheeling 30059 Wheeling Cellular Telephone Company
Page 3
Schedule 1: AT&T Wireless Services, Inc. and its Affiliates [LOGO]
MKT # MARKET SID/BID OPERATING ENTITY/LICENSEE
----- ------ ------- -------------------------
ARKANSAS PCS Little Rock MTA 40 AT&T Wireless PCS, Inc.
ARIZONA PCS Phoenix 4169 AT&T Wireless PCS, Inc.
ILLINOIS PCS Chicago 4111 AT&T Wireless PCS, Inc.
NEBRASKA PCS Omaha 4165 AT&T Wireless PCS, Inc.
Virginia PCS Richmond 4177 AT&T Wireless PCS, Inc.
WA DC PCS Xxxxxxxxxx - Xxxxxxxxx 0000 AT&T Wireless PCS, Inc.
PUERTO RICO PCS Puerto Rico 4175 AT&T Wireless PCS, Inc.
New Mexico PCS El Paso/Albuquerque 4128 AT&T Wireless PCS, Inc.
PENN. PCS Philadelphia 4167 AT&T Wireless PCS of Philadelphia, LLC
TENNESSEE PCS Memphis-Xxxxxxx MTA:28 AT&T Wireless PCS, Inc.
TENNESSEE PCS Knoxville 4141 AT&T Wireless PCS, Inc.
NORTH CAR. PCS Charlotte/Greensboro 4109 AT&T Wireless PCS, Inc.
XXXXX XXX. XXX Xxxxxxxxxx 00000 AT&T Wireless PCS, Inc.
Xxxxx XXX. XXX Xxxx Xxxx 00000 AT&T Wireless PCS, Inc.
OHIO PCS Cincinnati/Dayton 4113 AT&T Wireless PCS, Inc.
OHIO PCS Cleveland 4116 AT&T Wireless PCS of Cleveland, LLC
OHIO PCS Columbus 4117 AT&T Wireless PCS, Inc.
New York PCS Buffalo/Rochester 4108 AT&T WIRELESS PCS, INC.
MISSOURI PCS St. Louis 4189 AT&T Wireless PCS, Inc.
Kentucky PCS Louisville Lexington 4147 AT&T Wireless PCS, Inc.
Kentucky PCS Nashville 4158 AT&T Wireless PCS, Inc.
MASS. PCS Boston Providence 4105 AT&T Wireless PCS, Inc.
MICHIGAN PCS Detroit 4125 AT&T Wireless PCS, Inc.
GEORGIA PCS Atlanta 4101 AT&T Wireless PCS, Inc.
Page 4
SCHEDULE 2
XXXXXX CELLULAR SYSTEMS, INC. AND ITS AFFILIATES
OK RSA# 5
OK RSA# 7
OK RSA# 2
ENID OK
TX RSA# 2
TX RSA# 16
CA RSA# 4
CA RSA# 7
Santa Cruz CA (1)
AZ RSA# 5
MD RSA# 2
MD RSA# 3
Hagerstown MD
Cumberland MD
PA RSA# 10 W
OH RSA# 2
MO RSA# 1
MO RSA# 4
MO RSA# 5A
MO RSA# 2
KS RSA# 5
(1) Subject to consummation of acquisition.
29
EXHIBIT A
XXXXXX MARKETS
Enid, OK
OK RSA#2
CA RSA#4
Santa Cruz, CA (1)
TX RSA#16
TX RSA#10 (1)
MD RSA#2 (2)
MD RSA#3 (2)
Cumberland, MD (2)
Hagerstown, MD (2)
PA RSA #10W
(1) Subject to consummation of the acquisition of the market by Xxxxxx.
(2) Subject to any preexisting agreements of AWS and any approvals that may be
required thereunder. AWS is under no obligation to seek such approvals.
30
EXHIBIT B
AWS MARKETS
31
--------------------------------------------------------------------------------
SID MARKET
BID NAME STATE NOTE RSA
--------------------------------------------------------------------------------
23 Xxxxxxxxxxx, XX XX
00 Xxx Xxxx, XX NY
33 Dallas, TX TX
37 Xxxxx, XX XX
00 Xxxxxxxxxx, XX PA
45 Xxxxxx, XX XX
00 Xxxxxxx, XX WA
61 Xxxxxxxx, XX XX
00 Xxxxxxxxxxxx, XX FL
91 Salt Lake City, UT UT
000 Xxxxxx, XX TX
111 Tulsa, OK OK
129 Sacramento, CA CA
000 Xxx Xxxxxxx, XX TX
153 Fresno, CA CA
169 Oklahoma City, OK OK
175 Orlando, FL FL
000 Xxx Xxxxx, XX XX
000 Xxxxxxxxxx, XX XX
000 Xxxxxxx, XX XX
233 Xxxxxxxx, XX XX
000 Xxxxxxxxx, XX AK
289 Boise, ID ID
000 Xxxxx Xxxxxxx Xxxxxxx, XX TX
311 Chico, CA CA
000 Xxxxxxx Xxxxx, XX FL
409 Temple/Killeen, TX TX
425 Lawton, OK OK
000 Xxxxxx, XX XX
513 Redding, CA CA
515 Reno, NV NV
531 Santa Barbara, CA CA
000 Xxxxxxxxxxx, XX MO
579 Tyler, TX TX
000 Xxxx, XX TX
000 Xxxxxxx Xxxxx XX
1019 Wasilla, AK AK
1101 Litchfield, CN CN
1159 Maui, HI HI
1487 Hundterdon County, NJ NJ
1585 Grove, OK OK
1601 Hood River, OR OR
1711 Lufkin,TX TX
1723 Huntsville, TX TX
0000 Xxxxxxxxx, XX XX now BID 30837
0000 Xxxxxxx XX
4105 Boston-Providence MA/RI
4108 Buffalo-Rochester NY
4109 Xxxxxxxxx-Xxxxxxxxxx XX
00000 Xxxxxxxxxx XX
00000 Rock Hill SC
4111 Chicago IL
4113 Cincinnati/Dayton OH
4116 Cleveland OH
4117 Columbus OH
4125 Detroit MI
0000 Xx Xxxx/Xxxxxxxxxxxx XX
4141 Knoxville TN
4147 Louisville/Lexington KY
4158 Nashville KY
4165 Xxxxx XX
0000 Xxxxxxxxxxxx XX
--------------------------------------------------------------------------------
SID MARKET
BID NAME STATE NOTE RSA
--------------------------------------------------------------------------------
4169 Phoenix AZ
4175 Puerto Rico/US Virgin Islands
4177 Richmond VA
4189 St Louis MO
4196 Washington-Baltimore WA DC
4197 Xxxxxxx XX
00000 Austin MN
26345 Xxxxxxxx XX XX
00000 Xxxxxxxxx, XX XX
00000 Wheeling, WV WV
30063 Xxxxx, XX XX
00000 Oxnard, CA CA
30069 Joplin MO
30071 Monet, MO MO
30111 Corvallis, OR OR OR-4
30227 Yakima, XX XX
00000 Tri-Cities, XX XX
00000 Xxxxxxxxxx, XX XX
00000 Xxxxxxxxx, XX XX
00000 St Cloud, MN MN
30243 Xxxxxxxx, XX XX
00000 Xxxxxxxxxxx, XX XX
00000 Xxx Xxxx, XX XX
00000 Vero Beach, FL FL
30283 Xxxxx, XX XX
00000 Xxxxxxxxxx, XX XX
00000 The Xxxxxx, XX XX
00000 Xxxxxxxxx, XX XX
00000 Weirton/Steubenville, XX/XX XX
00000 Xxxxxx, XX XX
00000 Longview/Marshall TX TX
30475 Texarkana, TX/AR TX
30501 Xxxxxxxxxxxx, XX XX
00000 Xxxxxxx/Denison, TX TX
30743 Xxxxxxxx Xxxxxxx, XX XX
00000 Xxxx Xxxxxxx, XX XX
00000 Xxxxxxx, XX XX
00000 Lampassas, TX TX
30837 Xxxxxxxx XX
00000 Xxxxxxxx, XX XX
00000 Xxxxxxxxx, XX FL
30853 Xxxxxxxxx, XX XX
00000 Xxxxxx Xxxx, XX XX
00000 Xxxxxxx, XX XX
00000 Xxxxxx, XX CA
30861 Yuba City, CA CA
30863 Xxxxxxx, XX XX
00000 Xxxxxxx, XX XX
00000 Xxxxx, XX XX
00000 Xxxxx, XX UT
30873 Xxxxxxxxx, XX XX
00000 Xxxxxxx, XX XX
00000 Xxxxxxxxxx, XX XX
00000 St Xxxxxxxxxxx, XX XX
00000 Xxxxxxxxxx, XX XX
00000 Wasilla, AK AK
30971 Xxxxxxxx, XX XX
00000 Vail/Grand Xxxxxxxx, XX XX
00000 Madras, OR OR
--------------------------------------------------------------------------------
AT&T MANAGED MARKETS
NOT INCLUDED IN SERVICE RATES.
SORTED BY: SID/BID
EFFECTIVE: NOVEMBER 1, 1997
--------------------------------------------------------------------------------
SID MARKET NOTES Rates
BID NAME Contact
--------------------------------------------------------------------------------
1089 Canon City, CO
1163 Coeur D'Alene, ID North American Cell
1321 Deep Creek, MD MD-1 LP
0000 Xxxxxxxxxx, XX KO Communications
0000 Xxx Xxxx, XX Concho Cellular
30237 Sierra, CA Data Cellular Systems
00000 Xx Xxxxxx, XX Cellular Pacific
30249 Xxxxxxx, XX
00000 Park City, UT Omega Cellular
30409 Xxxxxxx, XX
00000 San Luis Obispo, CA X-0 Xxx Xxxx Xxxxxx
00000 Ruston, LA LA 1 Joint Venture
EXHIBIT C
SERVICE CHARGES
The rates between the Xxxxxx markets listed below and all AWS markets listed on
Schedule 1 are as follows.
TX- RSA#16:
1998 Xxxxxx shall charge AWS $0.50 per minute, AWS shall charge Xxxxxx
$0.35 per minute.
1/16/1999 Xxxxxx shall charge AWS $0.35 per minute, AWS shall charge Xxxxxx
$0.35 per minute.
1/16/2000 and beyond - per the Rate Adjustment below.
All minutes billed in full minute increments, partial minutes rounded up to next
full minute.
RATE ADJUSTMENT
The following defined terms are used herein:
- "Outcollect Revenues" means the amount paid by AWS to Xxxxxx for Service
provided to AWS Customers as Roamers in any Market that is included in the
Xxxxxx System.
- "Base Period" means any twelve consecutive calendar months.
- "Prior Period" means the twelve consecutive calendar months preceding any
Base Period. A Prior Period may include a period during which a Market was
operated by a predecessor in interest to Xxxxxx.
- "Market" means any individual area designated and operated by Xxxxxx as a
home service area.
Effective one year after the Effective Date, the rate payable by AWS to Xxxxxx
for roaming in any Market that has been operated by Xxxxxx for at least twelve
months shall be adjusted in accordance with the following formula IF AND ONLY IF
such calculation shall result in a lower rate than that previously in effect:
The per minute rate shall be adjusted by multiplying the rate by (1) 1.2 and (2)
Outcollect Revenues during the Prior Period and dividing by (3) Outcollect
Revenues for the Base Period. The result shall be rounded to the nearest whole
cent for purposes of the new rate to be applied, but shall be rounded at the
sixth decimal place for purposes of calculating future rate adjustments.
Examples:
(1) Xxxxxx acquires Market X from XYZ Wireless Co. on July 1, 1998. The roaming
rate in Market X is $.35 per minute. For the period from July 1, 1998 to
June 30, 1999, AWS pays Xxxxxx $650,000 for roaming in Market X. For the
period from July 1, 1997 to June 30, 1998, AWS paid XYZ Wireless Co.
$500,000 for roaming in Market X. Effective July 1, 1999, the roaming rate
shall be adjusted to $.35 x (1.2 x $500,000)/$650,000 = $.32 (as rounded).
For future rate adjustments, the rate shall be .323077.
(2) Same assumptions as Ex. 1, but Outcollect Revenue in Base Period is
$575,000. The calculation then yields $.35 x (1.2 x $500,000)/$575,000 =
$.37. Since this exceeds the rate in effect, no adjustment is made and the
roaming rate continues to be $.35.
32
CA RSA#4
1998 Xxxxxx shall charge AWS CA markets $0.35 per peak minute, $0.20 per
off peak minute*. AWS CA markets shall charge $0.35 per peak minute, $0.20 per
off peak minute.*
*Peak = 6:00 AM to 7:59 PM Monday - Friday; off-peak = 8:00 PM - 5:59 AM Monday
- Friday, all day Saturday and Sunday.
Xxxxxx and AWS shall charge $0.50 per minute reciprocal for markets outside of
CA.
Effective 4/1/1999 the rates to be charged are per the Rate Adjustment shown
below.
All minutes billed in full minute increments, partial minutes rounded up to next
full minute.
RATE ADJUSTMENT
The following defined terms are used herein:
- "Outcollect Revenues" means the amount paid by AWS to Xxxxxx for Service
provided to AWS Customers as Roamers in any Market that is included in the
Xxxxxx System.
- "Base Period" means any twelve consecutive calendar months.
- "Prior Period" means the twelve consecutive calendar months preceding any
Base Period. A Prior Period may include a period during which a Market was
operated by a predecessor in interest to Xxxxxx.
- "Market" means any individual area designated and operated by Xxxxxx as a
home service area.
Effective one year after the Effective Date, the rate payable by AWS to Xxxxxx
for roaming in any Market that has been operated by Xxxxxx for at least twelve
months shall be adjusted in accordance with the following formula IF AND ONLY IF
such calculation shall result in a lower rate than that previously in effect:
The per minute rate shall be adjusted by multiplying the rate by (1) 1.2 and (2)
Outcollect Revenues during the Prior Period and dividing by (3) Outcollect
Revenues for the Base Period. The result shall be rounded to the nearest whole
cent for purposes of the new rate to be applied, but shall be rounded at the
sixth decimal place for purposes of calculating future rate adjustments.
Examples:
(1) Xxxxxx acquires Market X from XYZ Wireless Co. on July 1, 1998. The
roaming rate in Market X is $.35 per minute. For the period from July 1,
1998 to June 30, 1999, AWS pays Xxxxxx $650,000 for roaming in Market X.
For the period from July 1, 1997 to June 30, 1998, AWS paid XYZ Wireless
Co. $500,000 for roaming in Market X. Effective July 1, 1999, the roaming
rate shall be adjusted to $.35 x (1.2 x $500,000)/$650,000 = $.32 (as
rounded). For future rate adjustments, the rate shall be .323077.
(2) Same assumptions as Ex. 1, but Outcollect Revenue in Base Period is
$575,000. The calculation then yields $.35 x (1.2 x $500,000)/$575,000 =
$.37. Since this exceeds the rate in effect, no adjustment is made and the
roaming rate continues to be $.35.
33
SANTA CRUZ CA:
1998 Xxxxxx and AWS shall reciprocally charge $0.35 per minute.
Effective twelve (12) months after the closing date of the sale of this market
to Xxxxxx, the rates to be charged are per the Rate Adjustment shown below.
All minutes billed in full minute increments, partial minutes rounded up to next
full minute.
RATE ADJUSTMENT
The following defined terms are used herein:
- "Outcollect Revenues" means the amount paid by AWS to Xxxxxx for Service
provided to AWS Customers as Roamers in any Market that is included in the
Xxxxxx System.
- "Base Period" means any twelve consecutive calendar months.
- "Prior Period" means the twelve consecutive calendar months preceding any
Base Period. A Prior Period may include a period during which a Market was
operated by a predecessor in interest to Xxxxxx.
- "Market" means any individual area designated and operated by Xxxxxx as a
home service area.
Effective one year after the Effective Date, the rate payable by AWS to Xxxxxx
for roaming in any Market that has been operated by Xxxxxx for at least twelve
months shall be adjusted in accordance with the following formula IF AND ONLY IF
such calculation shall result in a lower rate than that previously in effect:
The per minute rate shall be adjusted by multiplying the rate by (1) 1.2 and (2)
Outcollect Revenues during the Prior Period and dividing by (3) Outcollect
Revenues for the Base Period. The result shall be rounded to the nearest whole
cent for purposes of the new rate to be applied, but shall be rounded at the
sixth decimal place for purposes of calculating future rate adjustments.
Examples:
(1) Xxxxxx acquires Market X from XYZ Wireless Co. on July 1, 1998. The
roaming rate in Market X is $.35 per minute. For the period from July 1,
1998 to June 30, 1999, AWS pays Xxxxxx $650,000 for roaming in Market X.
For the period from July 1, 1997 to June 30, 1998, AWS paid XYZ Wireless
Co. $500,000 for roaming in Market X. Effective July 1, 1999, the roaming
rate shall be adjusted to $.35 x (1.2 x $500,000)/$650,000 = $.32 (as
rounded). For future rate adjustments, the rate shall be .323077.
(2) Same assumptions as Ex. 1, but Outcollect Revenue in Base Period is
$575,000. The calculation then yields $.35 x (1.2 x $500,000)/$575,000 =
$.37. Since this exceeds the rate in effect, no adjustment is made and the
roaming rate continues to be $.35.
34
ENID OK AND OK RSA #2:
1998 Xxxxxx and AWS shall reciprocally charge $0.35 per minute.
Effective twelve (12) months after the effective date of this Agreement, the
rates to be charged are per the Rate Adjustment shown below.
All minutes billed in full minute increments, partial minutes rounded up to next
full minute.
RATE ADJUSTMENT
The following defined terms are used herein:
- "Outcollect Revenues" means the amount paid by AWS to Xxxxxx for Service
provided to AWS Customers as Roamers in any Market that is included in the
Xxxxxx System.
- "Base Period" means any twelve consecutive calendar months.
- "Prior Period" means the twelve consecutive calendar months preceding any
Base Period. A Prior Period may include a period during which a Market was
operated by a predecessor in interest to Xxxxxx.
- "Market" means any individual area designated and operated by Xxxxxx as a
home service area.
Effective one year after the Effective Date, the rate payable by AWS to Xxxxxx
for roaming in any Market that has been operated by Xxxxxx for at least twelve
months shall be adjusted in accordance with the following formula IF AND ONLY IF
such calculation shall result in a lower rate than that previously in effect:
The per minute rate shall be adjusted by multiplying the rate by (1) 1.2 and (2)
Outcollect Revenues during the Prior Period and dividing by (3) Outcollect
Revenues for the Base Period. The result shall be rounded to the nearest whole
cent for purposes of the new rate to be applied, but shall be rounded at the
sixth decimal place for purposes of calculating future rate adjustments.
Examples:
(1) Xxxxxx acquires Market X from XYZ Wireless Co. on July
1, 1998. The roaming rate in Market X is $.35 per minute. For the period
from July 1, 1998 to June 30, 1999, AWS pays Xxxxxx $650,000 for roaming in
Market X. For the period from July 1, 1997 to June 30, 1998, AWS paid XYZ
Wireless Co. $500,000 for roaming in Market X. Effective July 1, 1999, the
roaming rate shall be adjusted to $.35 x (1.2 x $500,000)/$650,000 = $.32
(as rounded). For future rate adjustments, the rate shall be .323077.
(2) Same assumptions as Ex. 1, but Outcollect Revenue in Base
Period is $575,000. The calculation then yields $.35 x (1.2 x
$500,000)/$575,000 = $.37. Since this exceeds the rate in effect, no
adjustment is made and the roaming rate continues to be $.35.
35
MD RSA#2,MD RSA#2, CUMBERLAND, HAGERSTOWN MD, PA RSA#10 W:
1998 Xxxxxx and AWS shall reciprocally charge $0.35 per minute.
Effective twelve (12) months after the effective date of this Agreement, the
rates to be charged are per the Rate Adjustment shown below.
All minutes billed in full minute increments, partial minutes rounded up to next
full minute.
RATE ADJUSTMENT
The following defined terms are used herein:
- "Outcollect Revenues" means the amount paid by AWS to Xxxxxx for Service
provided to AWS Customers as Roamers in any Market that is included in the
Xxxxxx System.
- "Base Period" means any twelve consecutive calendar months.
- "Prior Period" means the twelve consecutive calendar months preceding any
Base Period. A Prior Period may include a period during which a Market was
operated by a predecessor in interest to Xxxxxx.
- "Market" means any individual area designated and operated by Xxxxxx as a
home service area.
Effective one year after the Effective Date, the rate payable by AWS to Xxxxxx
for roaming in any Market that has been operated by Xxxxxx for at least twelve
months shall be adjusted in accordance with the following formula IF AND ONLY IF
such calculation shall result in a lower rate than that previously in effect:
The per minute rate shall be adjusted by multiplying the rate by (1) 1.2 and (2)
Outcollect Revenues during the Prior Period and dividing by (3) Outcollect
Revenues for the Base Period. The result shall be rounded to the nearest whole
cent for purposes of the new rate to be applied, but shall be rounded at the
sixth decimal place for purposes of calculating future rate adjustments.
Examples:
(1) Xxxxxx acquires Market X from XYZ Wireless Co. on July 1, 1998. The
roaming rate in Market X is $.35 per minute. For the period from July 1,
1998 to June 30, 1999, AWS pays Xxxxxx $650,000 for roaming in Market X.
For the period from July 1, 1997 to June 30, 1998, AWS paid XYZ Wireless
Co. $500,000 for roaming in Market X. Effective July 1, 1999, the roaming
rate shall be adjusted to $.35 x (1.2 x $500,000)/$650,000 = $.32 (as
rounded). For future rate adjustments, the rate shall be .323077.
(2) Same assumptions as Ex. 1, but Outcollect Revenue in Base Period is
$575,000. The calculation then yields $.35 x (1.2 x $500,000)/$575,000 =
$.37. Since this exceeds the rate in effect, no adjustment is made and the
roaming rate continues to be $.35.
36
MARKETS ADDED TO EXHIBIT A AFTER THE EFFECTIVE DATE OF THIS AGREEMENT
First twelve months Xxxxxx and AWS shall determine rate(s) to be charged.
Second twelve (12) months and beyond - Effective twelve (12) months after the
addition of the market to this Agreement, the rates to be charged are per the
Rate Adjustment shown below or such other rates as the Parties shall mutually
agree on a market by market basis.
All minutes billed in full minute increments, partial minutes rounded up to next
full minute.
RATE ADJUSTMENT
The following defined terms are used herein:
- "Outcollect Revenues" means the amount paid by AWS to Xxxxxx for Service
provided to AWS Customers as Roamers in any Market that is included in the
Xxxxxx System.
- "Base Period" means any twelve consecutive calendar months.
- "Prior Period" means the twelve consecutive calendar months preceding any
Base Period. A Prior Period may include a period during which a Market was
operated by a predecessor in interest to Xxxxxx.
- "Market" means any individual area designated and operated by Xxxxxx as a
home service area.
Effective one year after the Effective Date, the rate payable by AWS to
Xxxxxx for roaming in any Market that has been operated by Xxxxxx for at
least twelve months shall be adjusted in accordance with the following
formula IF AND ONLY IF such calculation shall result in a lower rate than
that previously in effect: The per minute rate shall be adjusted by
multiplying the rate by (1) 1.2 and (2) Outcollect Revenues during the Prior
Period and dividing by (3) Outcollect Revenues for the Base Period. The
result shall be rounded to the nearest whole cent for purposes of the new
rate to be applied, but shall be rounded at the sixth decimal place for
purposes of calculating future rate adjustments.
Examples:
(1) Xxxxxx acquires Market X from XYZ Wireless Co. on July 1, 1998. The
roaming rate in Market X is $.35 per minute. For the period from July 1,
1998 to June 30, 1999, AWS pays Xxxxxx $650,000 for roaming in Market X.
For the period from July 1, 1997 to June 30, 1998, AWS paid XYZ Wireless
Co. $500,000 for roaming in Market X. Effective July 1, 1999, the roaming
rate shall be adjusted to $.35 x (1.2 x $500,000)/$650,000 = $.32 (as
rounded). For future rate adjustments, the rate shall be .323077.
(2) Same assumptions as Ex. 1, but Outcollect Revenue in Base Period is
$575,000. The calculation then yields $.35 x (1.2 x $500,000)/$575,000 =
$.37. Since this exceeds the rate in effect, no adjustment is made and the
roaming rate continues to be $.35.
37
ALL OTHER XXXXXX MARKETS LISTED ON SCHEDULE 2 BUT NOT SPECIFIED ABOVE:
As of the effective date of this Agreement, OK RSA#5, OK RSA#7, TX RSA#2, CA
RSA#7, AZ RSA#5, OH RSA#2, MO RSA#1, MO RSA#4, MO RSA#5A, MO RSA#2 and KS RSA#5,
and AWS will reciprocally charge $0.35 per minute.
Effective 4/16/1999 OK RSA#5, OK RSA#7, TX RSA#2, CA RSA#7, AZ RSA#5, OH RSA#2,
MO RSA#1, MO RSA#4, MO RSA#5A, MO RSA#2 and KS RSA#5, and AWS will reciprocally
charge $0.25 per minute.
Effective 4/16/2000 OK RSA#5, OK RSA#7, TX RSA#2, CA RSA#7, AZ RSA#5, OH RSA#2,
MO RSA#1, MO RSA#4, MO RSA#5A, MO RSA#2 and KS RSA#5, and AWS will reciprocally
charge $0.20 per minute.
All minutes billed in full minute increments, partial minutes rounded up to next
full minute.
AWS KANSAS CITY JOINT VENTURE MARKETS AND XXXXXX
Rates between the Kansas City Joint Venture markets, designated on Schedule 1
and Xxxxxx shall be as set forth in July 11, 1997 rate agreement letter, but the
terms of this Agreement otherwise shall apply with respect thereto.
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TOLL RATES:
Xxxxxx and AWS agree that the toll rates charged between the parties shall be
reduced to the actual AWS average retail rates charged to AWS customers for
roaming, as calculated on a national basis, but not less than $0.15 per minute
for the years 1998-2000, $0.12 per minute for the year 2001 and $0.10 per minute
for the remaining term of the Agreement.
International toll rates shall be no more than AT&T tariff rates.
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EXHIBIT D
TECHNICAL DATA
METHODS AND PROCEDURES
The following information is furnished by __________ to __________ pursuant
to Section 6.1 of the Intercarrier Roamer Service Agreement between AT&T
Wireless Services, Inc. and ________________________, by __________________:
-------------------------------------------------------------------------------
NPA/NXX LINE RANGE SID/BID CITY START DATE END DATE
-------------------------------------------------------------------------------
By:____________________________
Title:_________________________
Issue Date:____________________
The effective date shall be
_______________________________
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EXHIBIT E
INTEROPERABILITY STANDARDS
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SCHEDULE E-1
CORE FEATURES
Below is a list and description of the Core Features that the Parties have
implemented in their Systems and agree to maintain in accordance with Section
10.3 of this Agreement. These definitions are functional descriptions of the
Core Features.
1. CALL DELIVERY
This capability permits a Customer to receive incoming calls to his or her
phone while in his or her home market or while roaming in the other Party's
Network (together, the "Mobile Wireless Network").
2. ROAMING - DO NOT DISTURB
This capability permits a Customer, who would normally receive all incoming
calls while visiting a Mobile Switching Center that is part of the Mobile
Wireless Network, to temporarily inhibit the delivery of such calls. Activating
this capability has no impact on the Customer's to originate calls or
on the Customer's ability to receive calls via the roamer access ports.
3. CALL FORWARDING
A. CALL FORWARDING IMMEDIATE
This capability permits a Customer to send all incoming calls destined for
the Customer's phone to another phone number specified by the Customer.
Activating this capability has no impact on the Customer's ability to originate
calls. When this capability is activated, calls are forwarded regardless of
whether the Customer is located within his or her local market or whether the
Customer is roaming outside of such local market.
B. CALL FORWARDING BUSY
This capability permits a Customer to send all incoming calls destined for
his or her phone to another phone number specified by the Customer when the
Customer is engaged in a call.
C. CALL FORWARDING NO ANSWER
This capability permits a Customer to send all incoming calls destined for
his or her phone to another phone number specified by the Customer when the
Customer does not answer or when the Customer's phone does not respond to a
page.
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D. CALL FORWARDING CONDITIONAL
This capability permits a Customer to send all incoming calls destined for
the Customer's phone to another phone number specified by the Customer when: (i)
the Customer does not answer his or her phone; (ii) the phone does not respond
to a page; or (iii) the Customer is engaged in a call.
4. CALL WAITING
This capability permits a Customer to receive incoming calls even though a
call may already be in progress.
5. VOICEMAIL
This capability forwards those Customer's incoming calls which are not
answered by the Customer, and for which no other explicit treatment has been
activated (for example, those described in item 3, above), to a voice storage
and retrieval system.
6. THREE WAY CALLING
This capability permits a Customer to add a third party to an active two
party call.
7. SLEEP MODE
This capability permits an IS 136 phone to operate in a power saving mode
when camping on an IS 136 system, thereby allowing the battery standby time to
increase.
8. VOICE COMPATIBILITY
This capability permits IS-136 phones to operate on a visited system.
9. CALL HANDOFF
This capability permits hand-off of a TDMA call at a handoff border of a
System to the TDMA or analog facilities of the adjoining service provider,
depending upon channel availability. Hand-offs will be required to occur
bi-directionally.
10. CALLING NUMBER IDENTIFICATION
This capability identifies for the Customer either the telephone number or
the stored name (in the wireless phone) of the person who is calling ("CNIP").
It also permits a Customer to inhibit the ability of a person to whom the
Customer is placing a call from identifying either the telephone number or the
name of such Customer who is placing the call ("CNER").
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11. MESSAGE WAITING INDICATOR
This capability is an enhancement to voice mail, and provides the
Customer with the current status of the number of unheard voice mail messages
waiting in his or her voice mail box.
12. SHORT MESSAGING SERVICE
This capability will permit a caller to deliver both numeric and
alphanumeric messages of up to eighty characters to an IS-136 phone. If the
Customer to whom the message has been delivered has his or her phone off or
is not in the IS-136 coverage area, then messages are stored for future
delivery.
13. ENHANCED REGISTRATION
This capability permits the wireless provider to keep track of IS-136
mobile unit activity or registration status. Registration status is used for
a number of different reasons: incoming call paging, IS-41 call delivery, SMS
message delivery. Traditionally the registration of the mobile was supervised
by Autonomous Registration, but Enhanced Registration provides a higher
resolution of visibility.
14. PRIVATE NUMBER PLAN
This capability permits a defined group of Customers to call defined
private network extensions by using an abbreviated unique dialing pattern
(four digit dialing).
15. OVER THE AIR ACTIVATION (OTA) AND OVER THE AIR PROGRAMMING (OTAP)
This capability will permit the service provider to provision mobiles
"over the air". This functionality will remove the need for the subscriber to
visit an agent and have the phone activated in the traditional manner. The
would-be subscriber would follow instructions on how to activate service and
within minutes be able to place calls.
16. */# DIALING CODE UNIFORMITY
This capability will permit Customer's to dial specified numbers
preceded by a "#" or "*" symbol to access specific services.
17. VOICE MAIL
The ability of a Customer to retrieve messages from the Customer's voice
mail box by dialing the Customer's wireless number.
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18. AUTHENTICATION FRAUD PROTECTION
This capability permits a caller to register, originate and terminate
calls utilizing the industry fraud protection CAVE algorithm.
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