OPERATING AGREEMENT
THIS OPERATING AGREEMENT (the "Agreement") is dated as of the 31st day of
January, 2000, by and between Xxxxxx Cellular Systems, Inc., on behalf of itself
and its Affiliates listed in Schedule 1 hereto (individually and collectively,
"Xxxxxx") and ACC Acquisition LLC, on behalf of itself and its Affiliates listed
in Schedule 2 hereto (individually and collectively, "ACC"). Xxxxxx and ACC are
sometimes referred to, individually, as a "Party" and together as "Parties."
R E C I T A L
WHEREAS, each of Xxxxxx and ACC 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:
ACC has the meaning set forth in the first paragraph of this Agreement.
ACC SERVICE AREA means the geographic area in which ACC and those of its
Affiliates now or hereafter listed on Schedule 2 provide Service.
ACC SYSTEM means the facilities owned and/or operated by ACC with which
it provides Service anywhere within the ACC Service Area.
ACC TDMA SYSTEM means that portion of the ACC System located in the
markets listed on Exhibit A.
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; provided, that AT&T Wireless and Xxxxxx Communications
Corporation and their respective Affiliates shall be deemed not to be
Affiliates of ACC for purposes of this Agreement.
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.
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.
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, Xxxxxx
and ACC have agreed to implement and maintain in order to create a common look
and feel and seamless subscriber service between the Xxxxxx System and the ACC
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.
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DEFAULT has the meaning set forth in Section 13.1.
XXXXXX has the meaning set forth in the first paragraph of this
Agreement.
XXXXXX SYSTEM means the facilities owned and/or operated by Xxxxxx with
which it provides Service anywhere within the United States.
EFFECTIVE DATE means the Closing Date under the Agreement and Plan of
Merger dated as of October 5, 1999 among ACC Acquisition LLC, ACC Acquisition
Co. and American Cellular Corporation.
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 Xxxxxx System
and the ACC 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 at a
commercially reasonable price 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.
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.
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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.
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 Xxxxxx System or the ACC System, and SYSTEMS means the
Xxxxxx System and the ACC 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
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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 ACC
System or the Xxxxxx 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 Xxxxxx System or the ACC 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.
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, in which event (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
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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. Upon
the addition to or deletion from Schedule 1 or 2 of any operating entity
pursuant to this 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 Section 2.5.
2.5
2.5.1 Xxxxxx, in its capacity as Home Carrier, shall cause
substantially all of its Customers, when roaming in the markets operated by ACC
that are listed on Exhibit A, to normally seek Service as Roamers from ACC prior
to seeking Service from any other carrier. ACC, 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 B, to normally seek
Service as Roamers from Xxxxxx 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.
2.6 ACC shall join and remain a member of the North American Cellular
Network throughout the term of this Agreement.
ARTICLE III.
RELATED SERVICES
3.1 Upon request by ACC, Xxxxxx and ACC 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 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.
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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.
6.2 [Reserved]
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 combination
which has been listed by the indemnifying Party as not being authorized to
receive Service; provided that (i)
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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 [Reserved]
6.5 Upon the implementation of wireless number portability in any
portion of either the Xxxxxx System or the ACC System, the Parties shall
cooperate in establishing an alternative method for exchanging ESN and/or
NPA/NXX information required to permit roaming by the other Party's Customers in
their respective systems.
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 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.
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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 AT&T Wireless'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:
If to Xxxxxx: Xxxxxx Cellular Systems, Inc.
c/x Xxxxxx Communications Corporation
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: ________________
Tel. No. 405-________
Fax No. 405-________
If to ACC: ACC Acquisition LLC
c/x Xxxxxx Communications Corporation
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn:
Tel. No. (405) ___-____
Fax No. (405) ___-____
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
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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.
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.
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
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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
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.
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ARTICLE X.
INTEROPERABILITY
10.1 The Parties agree that their respective obligations under this
Agreement related to the interoperability of the Xxxxxx System and the ACC 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.
Adopted Features shall be made available to all Customers of a Party when
roaming in the Xxxxxx System or the ACC 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.
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.
10.2 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 Xxxxxx, the Xxxxxx System and, in the case of ACC,
the ACC TDMA System, is currently (as of the Effective Date) TDMA.
10.2.2 The Parties shall deploy TDMA throughout the ACC TDMA
System and the Xxxxxx System within twelve (12) months after the date of this
Agreement. The Parties shall use commercially reasonable efforts to promote the
use of TDMA-based communications devices among their respective Customers who
roam on the Xxxxxx System or the ACC TDMA System, as the case may be.
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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 CORE FEATURES. Each Party shall, at its own expense,
implement the Core Features in the Xxxxxx System, in the case of Xxxxxx, and in
the ACC TDMA System, in the case of ACC, as soon as reasonably practicable and
in any event 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.
10.3.2 FUTURE CORE FEATURES. 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 The Parties shall use commercially reasonable efforts to
comply with the network performance standards with respect to the Adopted
Features that are set out in Schedule E-2 to Exhibit E attached hereto.
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.
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:
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- 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.
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
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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 Xxxxxx and ACC 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) Xxxxxx and ACC 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, Xxxxxx will order and be
the customer of record ("COR") for such facilities. ACC will reimburse Xxxxxx
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 Party's Customers.
10.9 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").
ARTICLE XI.
REPRESENTATIONS AND WARRANTIES
11.1 Xxxxxx hereby represents and warrants to ACC that:
11.1.1 Xxxxxx Cellular Systems, Inc. is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Oklahoma. Xxxxxx Cellular Systems, Inc. has all requisite power and authority
to execute and deliver this Agreement and to
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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 Xxxxxx Cellular Systems, Inc., enforceable against Xxxxxx Cellular Systems,
Inc. 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 Xxxxxx Cellular Systems, Inc. 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 ACC hereby represents and warrants to Xxxxxx that:
11.2.1 ACC is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of Delaware. ACC 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 ACC, enforceable against ACC 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.
11.2.3 The execution, delivery, and performance of this Agreement
by ACC 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 twenty (20) years; PROVIDED, that the provisions
of Section 2.5 shall terminate on the earlier of (i) the fifth anniversary of
the Effective Date and (ii) termination of the roaming preference obligations of
Xxxxxx under Section 8.2(a) of the LLC Agreement. 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
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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.
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 thirty (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;
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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 120 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 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
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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. Judgment 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 feeral 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 FCC, provided that such
assignee expressly assumes, by written instrument 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 or an Indemnified
Person shall acquire any rights hereunder as a third-party beneficiary or
otherwise by virtue of this Agreement.
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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 Xxxxxx, to: Xxxxxx Cellular Systems, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
with a copy to: Xxxxxx Communications Corporation
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
If to ACC to: ACC Acquisition LLC
c/x Xxxxxx Communications Corporation
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
with a copy to: Xxxxxx Communications Corporation
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
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.
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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.
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
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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, 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.
18.7 Except for claims by third parties which fall within the scope of
a Party's indemnification obligations under Section 6.3, 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
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public statement or release is so required, and Xxxxxx and ACC 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 Xxxxxx and ACC. 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.
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EXECUTED as of the date first written above.
XXXXXX CELLULAR SYSTEMS, INC. ACC ACQUISITION LLC
By: ____________________________ By: AT&T Wireless Services JV Co.
Name: By:________________________________
Title: Name: _____________________________
Date: __________________________ Date: _____________________________
Title:_____________________________
Date:______________________________
By: Xxxxxx XX Company
By:________________________________
Name:______________________________
Title:_____________________________
Date:______________________________
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