EXHIBIT 10.11
INTERCARRIER ROAMER SERVICE AGREEMENT
THIS INTERCARRIER ROAMER SERVICE AGREEMENT (the "Agreement") is dated
as of the 4th day of February, 1998 by and between AT&T Wireless Services, Inc.,
a Delaware corporation, on behalf of its Affiliates (individually and
collectively, "AT&T") for the markets listed on Schedule 1 hereto, and Triton
PCS Operating Company L.L.C., a Delaware limited liability company, on behalf of
itself and its Affiliates (individually and collectively, "Triton") for the
markets listed on Schedule 2. AT&T and Triton are sometimes referred to,
individually, as a "Party" and together as "Parties."
R E C I T A L
WHEREAS, each of AT&T and Triton desire to make arrangements to facilitate
the provision of mobile wireless radiotelephone service ("Service") to the
customers of the other Party, while such customers are using the wireless
radiotelephone facilities of such Party, in accordance with the terms of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein set forth
and intending to be legally bound hereby, the Parties do hereby agree as
follows:
ARTICLE 1.
DEFINITIONS
As used in this Agreement, the terms below shall have the following
meanings:
Affiliate means, with respect to a Party, any facilities-based CMRS
operating company that is (a) controlled by the Party, (b) an entity in which
the Party has at least fifty percent (50%) voting interest, (c) an entity that
shares switching facilities with the Party, (d) managed by the Party, or (e) an
entity that has purchased a portion of CMRS spectrum from the Party in a market
listed on Schedule 1 and in which the Party maintains an ownership interest.
Approved CIBERNET Negative File Guidelines means the negative file
guidelines appearing in the CIBER Record in effect from time to time.
Authorized Receipt Point or "ARP" means the location or address of the
Person 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 4 below
for whom the
Serving Carrier has not received a negative notification in accordance with the
provisions of this Agreement.
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 Commercial Mobile Radio Service.
ESN means the Electronic Serial Number that is encoded in a wireless
telephone set by the manufacturer and which is broadcast by such telephone.
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.
Home Rate is the average actual rate per minute billed to customer by the
Home Carrier for access and airtime, but excluding revenues for features, taxes,
toll or other non-rate items.
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.
NPA/NXX combinations means the six-digit numerical combinations assigned by
regulatory authorities to identify the area code and telephone number prefix for
Service.
Roamer means a customer of one Party who seeks Service in a geographic area
outside of the area served by such Party with whom it is registered and within
the geographic area served by the other Party.
Service shall have the meaning set forth in the Recital of this Agreement.
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Serving Carrier means a Party who provides Service for registered customers
of another Party while such customers are out of their Home Carrier's geographic
area and in the geographic area where the Serving Carrier directly or through
Affiliates holds a license or permit to construct and operate a mobile wireless
radiotelephone system and station.
ARTICLE II.
PROVISION OF SERVICE
2.1 Each Party shall provide, to any Authorized Roamer who so requests,
Service in accordance with its own tariffs, if applicable, and with the terms
and conditions of this Agreement.
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 tariffs, 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 Nothing in this Agreement shall be construed to require either Party
to provide Service using technology compatible with the technology used by the
other Party.
2.5 Either Party may from time to time add to the list of markets owned or
operated by such Party or its Affiliates set forth on Schedule 1 or 2, as the
case may be, by giving notice thereof to the other Party, together with a copy
of the modified Schedule. Any modified Schedule 1 or 2 so furnished shall be
substituted for Schedule 1 or 2, as the case may be, as in effect prior to such
modification, and shall become part of this Agreement effective upon thirty (30)
days' notice to the other Party.
ARTICLE III.
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 wireless service and one hundred percent
(100%) of pass-through charges (i.e., any toll or other charges owed by the
Serving Carrier hereunder to any toll provider or other carrier in connection
with
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providing such Service rates on Exhibit A). The amount of the charges for the
use of each Serving Carrier's Service are set forth in Exhibit A attached to
this Agreement.
ARTICLE IV.
EXCHANGE OF INFORMATION
4.1 Exhibit B to this Agreement is a list furnished by the respective
Parties of 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 B. 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 B to this Agreement and shall include the requested
effective date for the addition, deletion or change.
4.2 Each Party shall provide to each other Party, a list of MINs (from
among those within the NPA/NXX combination(s) identified pursuant to Section 4.1
hereof) and ESNs (used by customers with such MINs) 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.
4.3 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 third party
claims, suits, demands, losses and expenses, including 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.
4.3.1 Each Party, due to system limitations, may purge or delete
numbers of its customers from the lists as referred to in Section 4.2 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
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charges incurred by those numbers. All purges or deletions made pursuant to this
Section 4.3.1 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.)
4.4 All information not of public record that is exchanged pursuant to
this Agreement shall be treated as confidential. Parties obtaining such
confidential information through this Agreement shall use it only as necessary
to carry out the purposes of this Agreement or as necessary to comply with
federal, state or local law. Parties obtaining confidential information through
this Agreement shall not disclose its contents except as necessary to its duly
authorized agents to carry out the purposes of this Agreement or as necessary to
comply with federal, state or local law. The obligation to protect the
confidentiality of information shall survive the termination of the agreement
for a period of five years.
ARTICLE V.
FRAUD
5.1 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 this Agreement, in whole or in
part, pursuant to the terms of this Agreement.
5.2 To control fraudulent Roamer usage, each Party shall use 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. The Parties agree that calls completed by a Serving Carrier, either
(a) after a PV request has determined that a Roamer is not a valid customer of
the Home Carrier or (b) for any unauthorized ESN after entry to the Industry
Negative File has become effective, shall be the sole responsibility of the
Serving Carrier.
5.3 The Serving Carrier shall make PV checks with respect to all Roamer
calls made by purported customers of the Home Carrier. If the Serving Carrier
fails to make such a check with respect to call, the Serving Carrier shall not
charge the Home Carrier any amounts for that call in the event the call was the
result of fraudulent or unauthorized use.
5.4 The Parties may agree to use an alternative method of call validation,
including but not limited to the use of SS-7 connections either through a
network of carriers or directly between the systems of the Parties.
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5.5 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.
5.6 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'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 so 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.
5.7 For purposes of notification under this Article 5, the following
addresses and facsimile numbers shall be used:
If to AT&T:
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 Triton:
000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
Xx. Xxxxxx X. Xxxxxxx
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 13 below.
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ARTICLE VI.
BILLING
6.1 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.
6.2 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.
6.3 Where the Authorized Roamer billing information required to be
provided by the Serving Carrier in accordance with Section 6.2 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.
6.4 No credit for insufficient data or defective records shall be
permitted except as provided in Section 6.3 above, unless mutually agreed upon
by both Parties.
6.5 Each Home Carrier may at its discretion perform any necessary edits at
its Clearinghouse on in collect or out collect call records to ensure compliance
with the terms of this Agreement.
ARTICLE VII.
SETTLEMENT
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7.1 Each Party will settle its accounts with the other Parties on the
basis of billing information received as described in this Article VII. In the
event both Parties use Net Financial Settlement procedures, 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.
7.1.1 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.
7.2 In the event that either Party does not use Net Financial Settlement
procedures, the billing and payment for charges incurred under this Agreement
shall be as set forth below.
7.2.1 The parties shall determine amounts owed to each other for
Service provided to Roamers in one-month periods with the end of such period
beginning on the sixteenth of each calendar month and ending on the fifteenth of
the following month in which Service is provided. The end of this Period shall
be referred to as "Close of Billing."
7.2.2 The Parties shall send each other an invoice for Services used
under this Agreement within fifteen (15) days after the Close of Billing.
7.2.3 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
7.2.4 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
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(1.5%) of the outstanding balance for each thirty-day period (or portion
thereof) that such payments are late.
7.2.5 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.
ARTICLE VIII.
AUTOMATIC CALL DELIVERY AND HAND-OFF
8.1 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 technically feasible to minimize transmission
errors and Service interruptions.
8.2 To the extent that each Home Carrier's customers may use the system of
a Serving Carrier whose geographic license area abuts the Home Carrier's
geographic license area, the Parties shall provide for automatic call hand-off
between such Home and Serving Carrier's systems. 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 technically feasible to minimize
transmission errors and Service interruption.
8.3 Neither of the Parties will be liable for nonperformance or defective
performance of its obligations under this Article 8 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.
8.4 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 IX.
TERM, TERMINATION AND SUSPENSION OF AGREEMENT
9.1 This Agreement shall have a term commencing on the date first written
above and shall continue for a period of twenty (20) years until the twentieth
(20th) anniversary of the date hereof.
9.2 This Agreement may be terminated or suspended by either Party
immediately upon written notice to the other upon a default (as defined in
Paragraph 10.1) by the other Party. The Parties shall work together to resolve
as expeditiously as possible any difficulty that causes 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, unless either Party thereafter gives written notice
that in its reasonable view the problem necessitating the suspension has not
been resolved. If the problem causing the suspension of this Agreement remains
unresolved for thirty (30) days, this Agreement may be terminated by written
notification by either Party.
9.3 This Agreement may be suspended, in whole or in part, by either Party
immediately upon written notice to the other Party, in the event that such Party
determines, in its reasonable discretion, that fraudulent or unauthorized use on
the other Party's system is unacceptable. In such event, the notifying Party
shall defend, indemnify and hold harmless the other Party, and the other Party's
officers, directors, employees, agents and representatives from any claims by
any person or entity relating to such suspension of Service.
9.4 In the event that a market listed on Schedule 1 or Schedule 2, as the
case may be, ceases to be owned or operated by such Party or an Affiliate
thereof, such Party may terminate this Agreement with respect to such market
upon written notice to the other Party.
9.5 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 X.
DEFAULT
10.1 A Party will be in default under this Agreement upon the occurrence of
any of the following events:
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10.1.1 Breach of any term of this Agreement, if such breach shall
continue for thirty (30) days after receipt of written notice thereof;
10.1.3 Voluntary liquidation or dissolution; or
10.1.4 A final order by the Federal Communications Commission ("FCC")
revoking or denying renewal of the CMRS license or permit granted to such Party.
10.2 All claims and disputes relating in any way to the performance,
interpretation, validity, or breach of this Agreement shall be referred to final
and binding arbitration in accordance with rules established by the American
Arbitration Association ("Rules") as amended by this Agreement. A single
neutral arbitrator shall decide all claims hereunder. The costs of arbitration,
including the fees and expenses of the arbitrator shall be shared equally by the
Parties. Each Party shall bear the cost of preparing and presenting its case.
The arbitration shall take place in a city agreed upon by the Parties. 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. The arbitrator shall be limited, in
granting relief, to comply with the express provisions of this Agreement
relating to damages or the limitation thereof and neither Party may seek
punitive damages. Nothing contained in this Section 10.2 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.
ARTICLE XI.
SUCCESSORS AND ASSIGNS
Neither Party may sell, assign, transfer, or convey its interest in this
Agreement or any of its rights or obligations hereunder without the written
consent of both Parties, except that a Party may assign its rights and
obligations hereunder to an assignee of all or any part of its Service license
or permit issued by the FCC, provided that such assignee expressly assumes, by
written instrument approved by the other Party, all or the applicable part of
the obligations of such Party hereunder and thereby becomes a Party hereunder.
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 XII.
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 any other Party.
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ARTICLE XIII.
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), telex, facsimile, or overnight air delivery service, as follows:
If to AT&T, to:
AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Intercarrier Services
Fax No.: (000) 000-0000
with a copy to:
AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Legal Department
Fax No.: (000) 000-0000
If to Triton, to:
000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
Xx. Xxxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
with a copy to:
Kleinbard Xxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax No.: (000) 000-0000
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 telex or
facsimile; and the next business day if sent by overnight air delivery service.
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ARTICLE XIV.
MISCELLANEOUS
14.1 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.
14.2 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.
14.3 This Agreement constitutes the full and complete agreement of the
Parties. Any prior agreements among the Parties with respect to this specific
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.
14.4 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.
14.5 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.
14.6 (a) The parties shall use and strictly adhere to the following dispute
resolution processes, except as otherwise expressly provided in this Section
14.6, to resolve any and all disputes, controversies or claims, whether based on
contract, tort, statute, fraud, misrepresentation or any other legal or
equitable theory (hereinafter, "Dispute(s)"), arising out of or relating to this
Agreement (and any prior agreement this Agreement supersedes), including without
limitation, its making, termination, non-renewal, its alleged breach and the
subject matter of this Agreement (e.g., products or services furnished hereunder
or those related to those furnished):
(b) The parties shall first attempt to settle each Dispute through
good faith negotiations. The aggrieved party shall initiate such negotiations
by giving the other party(ies) written notice of the existence and nature of the
Dispute. The other party(ies) shall in a writing
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to the aggrieved party acknowledge such notice of Dispute within ten (10)
business days. Such acknowledgment may also set forth any Dispute that the
acknowledging party desires to have resolved in accordance with this Section.
(c) Thereafter, if any Dispute is not resolved by the parties through
negotiation within thirty (30) calendar days of the date of the notice of
acknowledgment, either party may terminate informal negotiations with respect to
that Dispute and request that the Dispute be submitted to non-binding mediation.
Any mediation of a Dispute under this Section shall be conducted by the CPR
Institute for Dispute Resolution ("CPR") in accordance with the then current CPR
"Model Mediation Procedure for Business Disputes" ("Model Procedures") and the
procedures specified in this Section to the extent that they conflict with,
modify or add to such Model Procedures. Any demand for initiation of mediation
of a Dispute must be given in writing to both the other party(ies) involved and
to the CPR and must set forth the nature of the Dispute. Each party to the
mediation shall bear its own expenses with respect to mediation and the parties
shall share equally the fees and expenses of the CPR and the mediator. The
failure by a party to timely pay its share of the mediation fees and expenses of
the CPR and the mediator shall be a bar to arbitration under Section 14.6(d) of
that party's Dispute(s). Any mediation under this Section shall be conducted
within the State of New York at a site selected by the mediator that is
reasonably convenient to the parties. Each party shall be represented in the
mediation by representatives having final settlement authority with respect to
the Dispute(s). All information and documents disclosed in mediation by any
party shall remain private and confidential to the disclosing party and may not
be disclosed by any party outside the mediation. No privilege or right with
respect to any information or document disclosed in mediation shall be waived or
lost by such disclosure.
(d) Any Dispute not finally resolved after negotiation and mediation
in accordance with Section 14.6(b) and 14.6(c) shall, upon the written demand of
any involved party delivered to the other party(ies) and the CPR, be finally
resolved through binding arbitration in accordance with the then current CPR
"Non-Administered Arbitration Rules" ("Arbitration Rules") and the procedures
specified in this Section to the extent that they conflict with, modify or add
to such Arbitration Rules. Any Dispute of any other party not finally resolved
after negotiation and mediation pursuant to this Section may be made a part of
the arbitration demanded by another party, provided that the written notice of
demand for arbitration of that Dispute is received by the CPR before selection
of an arbitrator by the CPR. Any demand for arbitration of a Dispute received
by the CPR after the selection of the arbitrator must be resolved through a
separate arbitration proceeding in accordance with this Section. Each party
shall bear its own expenses with respect to arbitration and the parties shall
share equally the fees and expenses of the CPR and the arbitrator. Unless
otherwise mutually agreed by the parties in writing, the arbitration shall be
conducted by one (1) neutral arbitrator. The arbitration shall be conducted in
the State of New York at a site selected by the arbitrator that is reasonably
convenient to the parties. The arbitrator shall be bound by and strictly
enforce the terms of the Agreement and may not limit, expand, or otherwise
modify the terms of this Agreement. The arbitrator shall make a good faith
effort to apply applicable law, but an arbitration decision and
14
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
Dispute, including the applicability or running of any statute of limitation.
The arbitrator shall not have power to award damages in connection with any
Dispute in excess of actual compensatory damages or to award punitive damages
and each party irrevocably waives any claim thereto. The arbitrator shall not
have the power to order pre-hearing discovery of documents or the taking of
depositions. The arbitrator may compel, to the extent provided by the FAA,
attendance of witnesses and the production of documents at the hearing. The
arbitrator's decision and award shall be made and delivered to the parties
within six (6) months of selection of the arbitrator by the CPR and judgment on
the award by the arbitrator may be entered by any court having jurisdiction
thereof.
(e) This Section shall be interpreted, governed by and enforced in
accordance with the United States Arbitration Act, 9 U.S.C. Sections 1-14 (the
"Federal Arbitration Act" or "FAA"). The laws of the State of New York, except
those pertaining to choice of law, arbitration of disputes and those pertaining
to the time limits for bringing an action that conflict with the terms of this
Dispute Resolution provision, shall govern all other substantive matters
pertaining to the interpretation and enforcement of the other terms of this
Agreement with respect to any Dispute. Any party to a Dispute, which is the
subject of a notice initiating the Dispute resolution procedures under this
Section, may seek a temporary injunction in any state or federal court of
competent jurisdiction to the limited extent necessary to preserve the status
quo during the pendency of final resolution of a Dispute in accordance with this
Section. If court proceedings to stay litigation of a Dispute or compel
arbitration of a Dispute are necessary, the party who unsuccessfully opposes
such proceedings shall pay all associated costs, expenses, and attorneys' fees
that the other party reasonably incurs in connection with such court
proceedings. An order to pay such costs, expenses and attorney fees shall become
part of any decision and award of the arbitrator of the Dispute. An arbitrator
appointed pursuant to Section 14.6(d) to resolve a Dispute may also issue such
injunctive orders and shall have the power to modify or dissolve the injunctive
order of any court to the extent it pertains to the Dispute which the arbitrator
has been selected to finally resolve. The parties, their representatives, other
participants, and the mediator and arbitrator shall hold the existence, content,
and result of the mediation and arbitration of a Dispute in confidence except to
the limited extent necessary to enforce a final settlement agreement or to
obtain and secure enforcement of or a judgment on an arbitration decision and
award.
(f) The statute(s) of limitation applicable to any Dispute shall be
tolled upon initiation of the Dispute resolution procedures under this Section
and shall remain tolled until the Dispute is resolved by mediation or
arbitration under this Section. Tolling shall cease if the aggrieved party with
a Dispute does not initiate mediation within sixty (60) calendar days after good
faith negotiations are terminated by any party and, after mediation of a
Dispute, if the aggrieved party with a Dispute does not initiate a demand for
arbitration within sixty (60) calendar days after mediation is terminated.
However, any Dispute is forever barred that has not expressly been made the
subject of the written notice required under Section 14.6(b) above
15
within 365 days after the date the Party asserting the Dispute first knows or
should have known of the existence of the acts or omissions that give rise to
such Dispute.
(g) Unless the parties mutually agree in writing, Disputes relating to
trademarks (including service marks), patents and copyrights shall not be
resolved in accordance with the Dispute resolution procedures set forth in this
Section and shall be resolved as otherwise provided in this Agreement.
(h) Each of the Parties hereby irrevocably consents to the exclusive
jurisdiction of the state or federal courts in the State of New York, and all
state or federal courts competent to hear appeals therefrom, over any actions
which may be commenced against any of them under or in connection with this
Agreement. Each of the Parties hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which any of them may now or
hereafter have to the laying of venue of any such dispute brought in such court
or any defense of inconvenient forum for the maintenance of such dispute in the
Southern District of New York and New York County. Each of the Parties hereby
agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Each of the Parties hereby consents to process being served by any party to this
Agreement in any actions by the transmittal of a copy thereof in accordance with
the provisions of Article XIII.
14.7 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 or consequential damages.
14.8 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.
EXECUTED as of the date first written above.
AT&T WIRELESS SERVICES, INC. TRITON PCS OPERATING COMPANY L.L.C.
By Triton Management Company, Inc.,
its Manager
By _____________________________ By ________________________________
Name: Name:
Title: Title:
16
SCHEDULE 1
AT&T Wireless Markets
SCHEDULE 2
Triton Markets
EXHIBIT A
SERVICE CHARGES
Service rates
-------------
1st Yr: $.40 per minute or partial minute
2nd Yr: $.35 per minute or partial minute
3rd Yr: $.30 per minute or partial minute
4th - 20th Yr: The Adjusted Average Home Rate or such
lower rate as the Parties negotiate
from time to time
Notwithstanding the foregoing, the per minute or partial minute Service rate in
respect of Service provided to customers of either Party's markets within the
Expanded Home Calling Area, while roaming in the Expanded Home Calling Area,
shall be $.25 during the first three years.
Notwithstanding the foregoing, after the expiration of the first three years,
the Service rate charged by the Parties for Service in any geographic area
consisting of at least three contiguous BTAs shall be reasonably competitive,
taking into account price, coverage and quality, with the rates charged for
comparable telecommunications services by the alternative carriers in such
geographic area, disregarding any carriers that do not service a material number
of customers in such geographic area, and, if it is not so competitive, such
Service Rates shall be reduced with respect to the applicable geographic area to
a reasonably competitive rate.
Toll charges
------------
InterLATA
---------
1st Yr: $.10 per minute
2nd Yr: $.08 per minute
3rd Yr: $.08 per minute
4th - 20th Yr: $.08 per minute or such other rate as the
Parties negotiate from time to time in
light of cost adjustments.
IntraLATA
---------
1st Yr - 3rd Yr: $.02 per minute
4th - 20th Yr: $.02 per minute or such other rate as the
Parties negotiate from time to time in
light of cost adjustments.
Taxes
-----
Amount charged Serving Carrier by applicable taxing authority
Miscellaneous
-------------
Service rates are charged in full minute increments with each partial minute
rounded to the next full minute. Neither Party shall be charged for incomplete
calls, busy calls, feature activations, 611, #611 or interconnect fees.
Definitions
-----------
"Adjusted Average Home Rate" means an amount equal to the lesser of (a) the
--------------------------
average of the Applicable Home Rates of AT&T and Triton and (b) the sum of the
lower of such Applicable Home Rates, plus ten cents ($.10).
"Applicable Home Rate" means, with respect to any Person, its Home Rate,
--------------------
calculated based on the revenues from access and airtime and the minutes of use,
in each case for such Person's customers in the Expanded Home Calling Area
during the most recent calendar year for which such amounts are available as of
the date of calculation.
"Expanded Home Calling Area" means the geographical area of, and markets
--------------------------
included within, the Charlotte, North Carolina, Atlanta, Georgia, Baltimore,
Maryland/Washington, D.C., and Richmond, Virginia, MTAs, and the State of
Florida.
A-2
EXHIBIT B
Technical Data
METHODS AND PROCEDURES
The following information is furnished by ___________ to __________
pursuant to Section 4.1 of the Intercarrier Roamer Service Agreement between
AT&T Wireless Services, Inc. and Triton, by __________________:
NPA/NXX LINE RANGE SID/ BID CITY START DATE END DATE
By:_______________________________
Title:____________________________
Issue Date:_______________________
The effective date shall be
__________________________________
