Exhibit 10.35
CELLULAR ONE LICENSE AGREEMENT
between
Cellular One Group
and
SYGNET Communications, Inc.
CELLULAR ONE LICENSE AGREEMENT
SECTION TITLE PAGE NO.
------- ----- -------
X. XXXXX, LIMITATIONS AND ACKNOWLEDGMENTS............................... 8
II. TERM AND RENEWAL..................................................... 9
III. RIGHTS AND DUTIES OF LICENSOR........................................ 11
IV. DUTIES OF LICENSEE................................................... 18
V. FEES AND REPORTING................................................... 28
VI. MARKS................................................................ 33
VII. CONFIDENTIAL INFORMATION............................................. 37
VIII. ADVERTISING.......................................................... 38
IX. INSURANCE............................................................ 41
X. TRANSFER OF INTEREST................................................. 42
XI. DEFAULT AND TERMINATION.............................................. 44
XII. OBLIGATIONS UPON TERMINATION OR EXPIRATION........................... 50
XIII. INDEPENDENT STATUS AND INDEMNIFICATION............................... 51
XIV. APPROVAL AND WAIVERS................................................. 52
XV. NOTICES.............................................................. 52
XVI. ENTIRE AGREEMENT..................................................... 53
XVII. SEVERABILITY AND CONSTRUCTION........................................ 53
XVIII. APPLICABLE LAW....................................................... 54
XIX. ACKNOWLEDGMENTS...................................................... 55
CELLULAR ONE LICENSE AGREEMENT
THIS AGREEMENT is entered by and between Cellular One Group, a Delaware
general partnership ("Licensor") and SYGNET Communications, Inc., a
corporation/partnership organized under the laws of OHIO ("Licensee").
PREAMBLE
Licensor is a Delaware general partnership (the "Partnership") with its
principal place of business in Dallas, Texas. The current general partners of
the Partnership are Cellular One Marketing, Inc., a Delaware corporation,
Cellular One Development, Inc., a Delaware corporation, and Vanguard Cellular
Corp., a North Carolina corporation. Additional partners may be admitted to the
Partnership from time to time. (The Partnership partners, as they may exist from
time to time, are referred to herein as the "Partnership Partners").
The Partnership is engaged in the business of licensing and promoting the
service xxxx "Cellular One" and certain related trademarks, service marks and
designs.
Licensee desires to receive a license from Licensor to use the Cellular
One-Registered Trademark- xxxx, together with the marks designated on Exhibit
A hereto and such other marks as Licensor may hereinafter designate in
writing (collectively referred to as the "Marks") within the market(s)
described on Exhibit B (the "Licensed Territory") in accordance with the
provisions of this License Agreement.
INTRODUCTORY STATEMENT
Licensor's goal has been and continues to be the promotion of the Marks as
being synonymous, in the minds of consumers of telecommunications services, with
nationwide, dependable, high quality telecommunications services and related
services, goods and equipment (the "National Brand Goal"). Historically,
Licensor's strategy to achieve the National Brand Goal has been to license the
Marks, and predecessors of the Marks, for use by providers of Cellular
Radiotelephone Services (as defined in 47 C.F.R ss.22.99) ("Cellular Telephone
Services") on the so-called "A" side in certain Federal Communications
Commission ("FCC") designated markets. The competition to licensees of the Marks
has historically come primarily from "B" side providers of Cellular Telephone
Services (who constitute the other providers of Cellular Telephone Services
under the duopoly created by the FCC for such service). Given this duopoly,
Licensor believes that its strategy for achieving the National Brand Goal has
been effective to date. However, the telecommunications landscape has changed
dramatically in
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recent periods and Licensor believes that its strategy may need to be modified
or entirely new strategies adopted to achieve and maintain the National Brand
Goal.
Licensor believes that these modified or new strategies will be essential
if its licensees are to enjoy the competitive benefits afforded by a widely
recognized national brand as other powerful national brand competitors, which
have not historically competed with licensees of the Marks, enter their markets
directly. Licensor believes that the emergence of these major new competitors,
with powerful national brands, will be accompanied by technological changes that
will render the distinction between Cellular Telephone Services and other
telecommunications services increasingly less important to consumers. Licensor
expects that consumers will begin to focus on applications, utilities, brand
names and distribution channels and will demand that a provider of
telecommunications services, either directly or through alliances, offer a full
menu of communications, such as long distance, cellular (or other wireless)
service, internet access, satellite television and local service, all under one
name and perhaps billed by a single source. Licensor believes that its current
and future strategies must be sufficiently flexible to permit it to respond to
these expected changes in the industry and to provide its licensees with a
national brand that can be used in a manner that will allow those licensees to
meet consumer expectations.
Licensor plans to continue, as its primary strategy, granting licenses to
"A" side Cellular Telephone Services providers (both in newly licensed markets
or in connection with the renewal of currently outstanding Cellular One "A" side
licenses), and to begin attempting to grant licenses to "B" side providers of
Cellular Telephone Services or to resellers of Cellular Telephone Services in
FCC licensed markets not served by an "A" side Cellular One licensee. Licensor
may also consider, however, licensing a provider of Alternate Wireless Services
(as defined below), such as a personal communications service provider, the
right to utilize the Marks in a market or markets where no Cellular Telephone
Services provider utilizes the Marks to promote such services.
Licensor has, from time to time, granted licensees of the Marks the right
to use one or more of such Marks in connection with products or services other
than those constituting Cellular Telephone Services. Among other things,
Licensor has permitted licensees of the Marks to incorporate one or more of the
Marks onto cellular telephone equipment or to utilize one or more of the Marks
in connection with the nationwide delivery of calls to cellular telephones.
Licensor has also granted licensees the right to continue to use or to begin
using one or more of the Marks in connection with some of the products and
services (the "Additional Products" and "Additional Services") described on
Exhibit D hereto. Licensor anticipates that consumers of wireless
telecommunications services may come to expect that high quality offerings of
services such as Cellular Telephone Services or other Primary Services (as
defined below) will include uniform functionality and service features and
bundles of Additional Products, Additional Services and Cellular Telephone
Services or other Primary Services. As such demand develops, Licensor expects to
designate standards for the offering and delivery of the Cellular Telephone
Services or Other Primary Services and related Additional Products and
Additional Services, and to identify one or more Additional Products or
Additional Services as
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"Core Products," the offering of which will be subject to the provisions of this
License Agreement, as described in Section III.I. hereof.
As part of its plan to achieve and maintain the National Brand Goal,
Licensor will from time to time establish standards pursuant to Section III.B.
hereof, defining minimum acceptable operating and other criteria for offerings
by Licensee of the Cellular Telephone Services or other Primary Services and
related Additional Services and Additional Products. In light of market
conditions, as they change from time to time, Licensor may designate separate
standards for products offered under a particular Xxxx. Licensor has provided,
on Exhibit E to this License Agreement, a description of the technical standards
and service standards (collectively, the "Quality Standards") which will
initially be applicable to the Cellular Telephone Services or Other Primary
Services, Core Products, Additional Services and Additional Products displaying
or sold under the various Marks.
Licensor may, in the future, designate certain of the Additional Products
or Additional Services as Core Products where and when it determines that
consumers have come to expect that such products or services will be offered in
conjunction with any high quality offering of Cellular Telephone Services or
other Primary Services, and in order to achieve and maintain the National Brand
Goal. The existing required Core Products are nationwide call delivery and
roaming capability. Additional Core Products may include, by way of example
only, such products or services as long distance, voice messaging, local
exchange service, dispatch service and paging service, which offer consumers
nationwide consistency of operation or other benefits. Unless it elects not to
do so, Licensee will be obligated to offer the Core Products under the specified
Marks throughout the Licensed Territory in connection with its delivery of
Cellular Telephone Services or other Primary Services. If Licensee is unable or
elects not to so offer one or more Core Products in connection with Cellular
Telephone Services or other Primary Services, Licensor, subject to Section
III.I. of this License Agreement, may amend the License Agreement to terminate
Licensee's rights to utilize the Marks to promote the Core Products not then
being offered or, with respect to the existing Core Products of nationwide call
delivery and roaming capability, may terminate this License Agreement.
The development of the wireless telecommunications industry and the
regulatory patterns relating to that industry have resulted in overlaps or
conflicts between licensees of the Marks with regard to certain promotional
activities. In order to permit licensees of the Marks to make full use of such
Marks in their promotional and other activities and in order to reduce conflicts
between or the expense of resolving conflicts between such licensees, this
License Agreement permits licensees of the Marks to make certain incidental use
of the Marks outside of their respective licensed territories while permitting
Licensor to impose reasonably necessary restrictions, including requiring the
use of tag lines or other identifying mechanisms, where necessary to maintain
the integrity of the licensed territories and to avoid customer confusion
regarding the providers of Cellular Telephone Services or other Primary Services
therein. In addition, because the markets for wireless telecommunications
services vary from geographic area to geographic area for economic, demographic,
topographic, legal and other reasons, and because Licensor expects that certain
markets may develop at different rates from others, this
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License Agreement permits Licensor to vary definitions of Cellular Telephone
Services or other Primary Services, Core Products, Additional Services and
Additional Products and to vary the Quality Standards and certain of the fees
payable hereunder in order to achieve or maintain progress toward the National
Brand Goal.
The foregoing is intended as an explanation of Licensor's goals and
planning, and shall not be deemed to affect the meaning or construction of any
of the following provisions. In the event of any conflict between the foregoing
and the following provisions, the following provisions shall prevail.
DEFINED TERMS
As used in this License Agreement, the capitalized terms set forth below
shall have the following meanings:
"1-800-CELL ONE Xxxx" shall mean the service xxxx denoted as such on
Exhibit A hereto.
"800 Number Supplement" shall have the meaning set forth in Section
IV.J.1.(b) of this License Agreement.
"A" Side" shall mean the Block A (nonwireline) cellular frequencies as
designated by the FCC.
"Additional Fees" shall mean any fees determined in accordance with Section
V.G. of this License Agreement.
"Additional Products" shall mean the products described as "Additional
Products" on Exhibit D hereto.
"Additional Services" shall mean the services described as "Additional
Services" on Exhibit D hereto.
"Advisory Council" shall have the meaning set forth in Section III.D. of
this License Agreement.
"Affiliate" shall have the meaning set forth in Section X.C. of this
License Agreement.
"Alternate Wireless Services" shall mean any telecommunications service
offering simultaneous, two-way wireless transmission and receipt of voice or
data, other than Cellular Telephone Services.
"Annual Administrative Fee" shall mean the fee determined in accordance
with Section V.D. of this License Agreement.
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"Annual Advertising Fee" shall mean the fee determined in accordance with
Section V.C. of this License Agreement.
"Annual License Fee" shall mean the fee determined in accordance with
Section V.B. of this License Agreement.
"Application Fee" shall mean the fee determined in accordance with Section
V.A. of this License Agreement.
"B" Side" shall mean the Block B (wireline) cellular frequencies as
designated by the FCC.
"Cellular One Xxxx" shall mean the trademark or service xxxx "Cellular One"
denoted as such on Exhibit A hereto.
"Cellular One Promotional Fund" shall have the meaning set forth in
Sections III.E. and VIII.C. of this License Agreement.
"Cellular Telephone Services" shall have the meaning set forth in the
Introductory Statement to this License Agreement.
"Certificates of Insurance" shall mean certificates designating insurance
coverages required to be delivered to Licensor pursuant to Section IX.C. of this
License Agreement.
"C.F.R." shall mean the Code of Federal Regulations, as may be amended from
time to time.
"Change of Control" shall have the meaning set forth in Section X.D. of
this License Agreement.
"Confidential Information" shall have the meaning set forth in Section
VII.A. of this License Agreement.
"Consumer Service Number" shall have the meaning set forth in Section IV.J.
of this License Agreement.
"Consumer Service Number Fee" shall mean the fee determined in accordance
with Section V.F. of this License Agreement.
"Core Products" shall mean those Additional Products and Additional
Services designated as "Core Products" on Exhibit D to this License Agreement,
as amended from time to time.
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"CTIA" shall mean the Cellular Telecommunications Industry Association, or
any successor thereto recognized by Licensor as such.
"Effective Date" shall mean the date shown adjacent to Licensor's signature
on this License Agreement.
"FCC" shall have the meaning set forth in the Introductory Statement to
this License Agreement.
"Fund" shall have the meaning set forth in Section VIII.C. of this License
Agreement.
"Graphic Standards Manual" shall have the meaning set forth in Section
III.A. of this License Agreement.
"Guide to Quality Operations" shall mean the guide and other materials
provided by Licensor to Licensee pursuant to Section III.B. hereto.
"Incidental Use" shall have the meaning set forth in Section VI.C. of this
License Agreement.
"Initial Year" shall have the meaning set forth in Section II.A.2. of this
License Agreement.
"Licensed Territory" shall mean the market(s) described on Exhibit B, as
amended from time to time pursuant to the provisions of this License Agreement.
"Licensee" shall have the meaning set forth in the first paragraph of this
License Agreement.
"Licensor" shall mean Cellular One Group, a Delaware general partnership,
and its permitted successors and assigns under this License Agreement.
"Long Distance Carrier" shall have the meaning set forth in Section
IV.J.1.(a) of this License Agreement.
"MSA" shall mean the cellular Metropolitan Statistical Areas as referred to
in 47 C.F.R. ss.22.909.
"Marks" shall have the meaning set forth in the Preamble to this License
Agreement.
"National Brand Goal" shall have the meaning set forth in the Introductory
Statement to this License Agreement.
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"Other 800 Programs" shall have the meaning set forth in Section V.F. of
this License Agreement.
"Partnership" shall have the meaning set forth in the Preamble to this
License Agreement.
"Partnership Partners" shall have the meaning set forth in the Preamble to
this License Agreement.
"Permits" shall have the meaning set forth in Section IV.B. of this License
Agreement.
"Personal Communication Services" shall have the meaning set forth in
Exhibit D hereto.
"Potential Customer Confusion" shall have the meaning set forth in Section
VI.D. of this License Agreement.
"Primary Services" shall mean the services specifically described on
Exhibit C hereto.
"Quality Standards" shall mean the technical standards and service
standards applicable to Primary Services, Core Products, Additional Services and
Additional Products set forth on Exhibit E to this License Agreement, as amended
from time to time.
"RSA" shall mean the cellular Rural Service Areas as referred to in 47
C.F.R. ss.22.909.
"Revised Licenses" shall mean the license agreements between Licensor and
its licensees, which are entered into after July 31, 1996 as part of Licensor's
general licensing program utilizing the Marks for or in conjunction with the
provision of telecommunication services, including, without limitation, the
provision of Cellular Telephone Services and/or other telecommunication services
substantially the same as or reasonably similar to the Primary Services being
licensed to Licensee hereunder.
"Strategic Market Change" shall have the meaning set forth in Section
III.H.4. of this License Agreement.
"Subsequent Year" shall have the meaning set forth in Section II.A.2. of
this License Agreement.
"Survey Company" shall have the meaning set forth in Section III.C. of this
License Agreement.
"Term" shall have the meaning set forth in Section II of this License
Agreement.
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"Terminated Market(s)" shall have the meaning set forth in the introduction
to Section XII of this License Agreement.
The parties therefore agree as follows:
X. XXXXX, LIMITATIONS AND ACKNOWLEDGMENTS
X. Xxxxx
1. Subject to the remainder of this License Agreement (including
without limitation, Licensor's rights described in Section I.B and Sections
III.E. through III.J. below), Licensor grants to Licensee, upon the terms and
conditions of this License Agreement, the exclusive right, license and privilege
to use the Marks in the Licensed Territory described on Exhibit B during the
Term of this License Agreement to promote the Primary Services, consisting of
Cellular Telephone Services on the "A" side, "B" side and/or the other services
described on Exhibit C hereto.
2. Subject to the remainder of this License Agreement, Licensor grants
to Licensee, upon the terms and conditions of this License Agreement, the
exclusive right, license and privilege to use the Marks during the Term in
connection with the promotion and sale of the Additional Services and the
Additional Products in the Licensed Territory.
3. Subject to the terms of this License Agreement, Licensor grants to
Licensee, upon the terms and conditions of this License Agreement, the right,
license and privilege to make Incidental Use (as defined in Section VI.C.) of
the Marks.
B. Limitations on Grant
1. If the Licensed Territory as described on Exhibit B consists of
multiple markets and the Licensee's rights under this License Agreement are
terminated with respect to one or more of such markets in accordance with the
provisions of this License Agreement, Exhibit B to this License Agreement and
specifically the term "Licensed Territory" shall thereafter be deemed to apply
only to the remaining market(s) as to which Licensee's rights under this License
Agreement continue. In addition, the Licensed Territory may be modified, in
accordance with the provisions of Section VI.D., in the event that Licensor
determines that Potential Customer Confusion exists.
2. Notwithstanding Licensee's exclusive right to utilize the Marks to
promote the Primary Services, Additional Services and Additional Products in the
Licensed Territory, other persons possessing a license to use the Marks may
promote the Primary Services, Additional Products and Additional Services
provided by such parties outside of the Licensed Territory in media receiving
distribution within or accessible by persons located in the Licensed
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Territory, such as regional magazines or newspapers, regional television and
radio and World Wide Web pages.
3. Subject to the provisions of Sections III.H. and III.I. of this
License Agreement, Licensor may terminate Licensee's right to use the Marks to
designate or promote certain Core Products, Additional Products and Additional
Services.
C. Acknowledgments
1. Subject to the specific grants to Licensee set forth in this
Section I, Licensee acknowledges that Licensor has and retains the right to use
and license the Marks anywhere in the world, within or outside of the Licensed
Territory and that Licensee shall have no rights with regard to such use or any
benefits therefrom.
2. Licensor and Licensee agree that effective with the commencement of
the Term of this License Agreement, all prior licenses to which Licensee is a
party relating to the use of the Marks, or any of them, in the Licensed
Territory or any part thereof shall terminate, together with all of Licensee's
rights thereunder.
II. TERM AND RENEWAL
A. Term
1. Except as otherwise provided in Section II.B. of this License
Agreement, the term (the "Term") of this License Agreement is five (5) years,
beginning on the Effective Date and ending on the day preceding the fifth
anniversary thereof. Licensee recognizes and agrees that Licensor may modify or
terminate the Term as it applies to Additional Products and Additional Services
or Core Products in accordance with Articles III and VI hereof.
2. The period from the Effective Date of this License Agreement until
December 31 of that calendar year shall be referred to herein as the "Initial
Year." Each subsequent calendar year commencing after the end of the Initial
Year shall be referred to herein as a "Subsequent Year."
B. Renewal
Licensee may, at its option, renew the license granted by this License
Agreement for two (2) additional terms (each, in turn, the "Term") of five (5)
years each provided that:
1. Licensee gives Licensor written notice of its election to renew not
less than six (6) months nor more than twelve (12) months before the end of the
expiring Term;
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2. Licensee is neither in default of any of its obligations under this
License Agreement, nor on probation pursuant to Section XI.E.;
3. Licensee has not during the expiring Term received any notice of
default under Section XI.D. which relates to a default which has not been cured;
4. At the end of the expiring Term, Licensee continues to hold all of
the Permits (as defined in Section IV.B.) necessary to provide the Primary
Services and those of the Core Products, Additional Services and Additional
Products being provided, sold or distributed by it;
5. No later than ninety (90) days before the end of the expiring Term,
Licensee executes Licensor's then-current form of license renewal agreement,
which agreement will supersede this License Agreement in all respects, provided
that such license renewal agreement shall not contain any terms, provisions or
conditions which differ materially from the terms, provisions or conditions of
this License Agreement, except terms, provisions and conditions (i) which in the
good faith judgment of Licensor are not materially adverse to Licensee, (ii)
which are appropriate, in the good faith judgment of Licensor, to accommodate
any material economic, technological, demographic, or other market changes
occurring during the prior five (5) year Term, (iii) which Licensor determines
in good faith are necessary to protect the Marks, (iv) which Licensor determines
in good faith are necessary to prevent Potential Customer Confusion (as defined
in Section VI.D.), (v) which relate to charges and fees (including increases)
which Licensor believes in good faith are necessary to provide adequate support
for the promotion of the Marks consistent with the National Brand Goal during
the renewal Term in question, (vi) which are reasonably necessary in Licensor's
determination to maintain or achieve the National Brand Goal, (vii) which
Licensor adopts pursuant to Sections III.G., III.H. or III.I. hereof, or (viii)
which relate or are enacted pursuant to Section III.E.;
6. At the end of the expiring Term, Licensee shall be in compliance
with the provisions of Section IV.A.2. If Licensee has been assigned probation
status at such time as described in Section IV.A.2., then such probation status
shall continue and the required timely improvements shall be a condition of
effective renewal;
7. At the end of the expiring Term, Licensee is offering on a good
faith commercial basis the Primary Services and all of the Core Products for
which Licensee is authorized to utilize the Marks, in substantially all of the
Licensed Territory in accordance with the Quality Standards and is promoting
such Primary Services and Core Products utilizing the applicable Marks in.
accordance with the Graphic Standards Manual; and
8. At the end of the expiring Term, Licensee shall have satisfied all
monetary obligations owed by Licensee to Licensor, and shall have timely met
such obligations throughout the term of this License Agreement.
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III. RIGHTS AND DUTIES OF LICENSOR
All duties of Licensor under this License Agreement are to Licensee, and no
other parry is entitled to rely on, enforce or obtain relief for breach of any
such obligation, either directly or by subrogation. This License Agreement is
not intended to and shall not create any partnership, joint venture or other
business relationship, other than that of Licensor and Licensee, between the
parties hereto, or to vest any rights in any third party or group of third
parties. This License Agreement shall not create any rights on behalf of
Licensee against any third party, including any other licensee of the Marks.
Subject to the foregoing, and to the remainder of this License Agreement,
Licensor shall undertake the following duties:
X. XXXXX USAGE GUIDELINES
1. Licensor will provide Licensee, from time to time, with a Graphic
Standards Manual (the "Graphic Standards Manual") containing written and graphic
guidelines for the correct reproduction, application and presentation of the
Marks. The Graphic Standards Manual may include, among other things, Xxxx
specimens, samples of advertisements and clip art indicating color, proportion,
and format. The Graphic Standards Manual may also provide for the use of one or
more tag lines to be used to differentiate or highlight a particular service or
offering or group of services or offerings, such as "Paging By Cellular One" and
require its usage in specific circumstances, including use on signage and
promotional materials referenced in Section IV.F. The Graphic Standards Manual
may also provide guidelines for the proper use of tag lines and require such
usage in the event that two or more licensees of the Marks are permitted to make
use thereof within the Licensed Territory, or any part thereof, pursuant to
Sections VI.C. or VI.D.
2. From time to time, upon not less than one (1) year's notice,
Licensee shall be entitled to designate one or more icons to be used with one or
more of the Marks and the manner of their usage to signify an association of
such icon or icons with such Marks.
B. TECHNICAL GUIDELINES, QUALITY STANDARDS
1. Licensor will provide Licensee with a Guide to Quality Operations
(the "Guide to Quality Operations") containing suggestions for providing
customers with high quality Primary Services, Core Products, Additional Services
and Additional Products, and other materials, as Licensor deems appropriate. The
Guide to Quality Operations may be modified and supplemented from time to time
as Licensor deems appropriate.
2. Attached to this License Agreement as Exhibit E are the Quality
Standards (the "Quality Standards"), as of the date hereof, applicable to
Primary Services, Core Products, Additional Services and Additional Products,
respectively, to be sold or provided, as the case may be, utilizing the Marks.
The Quality Standards include, as a general matter, criteria for minimum
acceptable service delivery levels and encompass such matters as geographic
coverage requirements, participation in a nationwide call delivery network,
standardized dialing patterns
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and the availability of telephone customer assistance. The Quality Standards
also include required features and technical guidelines for minimum acceptable
system functionality (although specific equipment or system designs will not be
required) and may encompass such matters as required functionality for
telephones and other devices constituting Additional Products, required
compliance by equipment with designated industry standards, compliance by
switching equipment with uniform handoff requirements, and similar requirements
relating to the delivery of Primary Services and Additional Services or the
operation of Additional Products.
3. From time to time, Licensor, by written notice to Licensee in
accordance with Section IV.A., shall have the right to amend the Quality
Standards with regard to any Xxxx to require added features or functionality for
Primary Services, to modify the minimum technical or operating standards
relating thereto or to require coordination and uniformity in the delivery of
Primary Services, Additional Services, Additional Products and Core Products
within the Licensed Territory and beyond. Licensor shall not be obligated to
consider the particular needs of Licensee or any group of licensees of the Marks
in connection with any amendment to the Quality Standards, except that Licensor
shall not propose amendments to the Quality Standards applicable to Licensee
only.
4. From time to time, Licensor, by written notice to Licensee in
accordance with Section IV.A., shall have the right to amend Exhibit E with
regard to any Xxxx to designate features, technical or operating standards or
functionality appropriate under existing economic, market, demographic and
technological conditions in similarly situated markets directed to the
achievement and maintenance of the National Brand Goal. Although uniformity and
consistency will normally be required by Licensor throughout the Licensed
Territory and among the various territories or markets in which Licensee and
others are licensed to use the Marks, the Licensor may, from time to time, make
certain distinctions, based upon demographic, topographic, legal or other
considerations, and provide for differing Quality Standards with regard thereto.
5. In addition, Licensor may, upon at least six (6) months written
notice to Licensee, amend Exhibit E to amend the Quality Standards for
Additional Products, Additional Services and Core Products, to designate Quality
Standards for any new Marks added to Exhibit A hereto or to designate Quality
Standards for Additional Products, Additional Services and Core Products for
which separate Quality Standards do not exist. In the event that an Additional
Product or Additional Service becomes a Core Product, Licensor may further amend
Exhibit E to establish Quality Standards for the offering and delivery of the
Core Products, as a whole or as a package of Core Products or Primary Services
and Core Products.
6. Exhibit E to this License Agreement, as amended from time to time,
is incorporated herein by reference. All references to the Quality Standards
shall mean those standards established, as of such time, by Exhibit E.
7. At Licensee's request, Licensor shall be entitled, but in no event
shall be required, to waive compliance by Licensee with one or more of the
Quality Standards in one or
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more of the markets constituting a part of the Licensed Territory, in the
event that Licensor believes such a waiver to be consistent with the National
Brand Goal. Any waiver by Licensor of a Quality Standard must be in writing
and may, at Licensor's election, be for a limited period or subject to one or
more conditions.
C. CUSTOMER SATISFACTION SURVEYS
Licensor shall have the right, at its own expense, commission an
independent survey company ("Survey Company") to conduct a customer satisfaction
survey of Licensee's customers on a yearly basis for purposes of assessing the
quality of Licensee's Primary Services, Additional Services, Additional Products
or Core Products, or all of them. The methodology of the survey will be
determined by the Survey Company and Licensor. An outline of current survey
methodology for Primary Services, which may change from time to time, is
attached as Exhibit F. The results of all surveys of Licensee's customers will
be shared with Licensee to assist Licensee in improving its business and
complying with Licensee's obligations under this License Agreement, including
its obligations with regard to the Quality Standards described herein. The
results of surveys will be used to evaluate the general level of customer
satisfaction and to assist Licensor in determining whether or not Licensee is
meeting the Quality Standards. Licensor will instruct the Survey Company to
obtain all required survey information directly from the Licensee and not
through or in conjunction with Licensor. The Survey Company will be required to
execute an appropriate confidentiality agreement for the benefit of Licensee and
the other licensees of the Marks, which shall provide that the Survey Company
will not disclose any Confidential Information of Licensee to Licensor, the
Partnership Partners or affiliates, or their employees or to any other party
(except that the results of the survey for each market and other survey
information which is applicable generally to all licensees of the Marks or any
of them may be disclosed to Licensor and used by Licensor in connection with its
business operations).
D. LICENSEE ADVISORY COUNCIL
Licensor has established an elected council of licensees ("Advisory
Council") comprised of licensees other than Partnership Partners from a broad
cross-section of markets throughout the United States, to advise and consult
with Licensor regarding material matters such as advertising, marketing and
Quality Standards relating to the Marks and to act as a liaison organization
between Licensor and the licensees of the Marks. The procedures and
responsibilities adopted for the operation of the Advisory Council are subject
to change, from time to time, as may be appropriate in the judgment of Licensor
to provide the most effective organization for performing the contemplated
functions of the Advisory Council. The representative of any licensee serving on
the Advisory Council shall be an officer of such licensee or other person
reasonably acceptable to Licensor. The charter of responsibility of the Advisory
Council provides that all members of the Advisory Council will be informed of
applicable antitrust laws and shall abide by any decisions of Licensor's
antitrust counsel in such regard.
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E. NATIONAL AND REGIONAL ADVERTISING
Licensor has established and maintains the Cellular One Promotional
Fund, as described in Section VIII.C. of this License Agreement. Licensor
administers the Fund with the goal of enhancing the image of the Marks and
achieving or maintaining the National Brand Goal. Licensor, in connection with
the Cellular One Promotional Fund, or otherwise, shall have the right, from time
to time, to promote the Marks in local, regional or national advertising
receiving distribution within the Licensed Territory and to engage in any other
promotional activities, including sponsoring sporting or other public events
within the Licensed Territory, as Licensor deems appropriate in connection with
the National Brand Goal. No consent of Licensee shall be necessary to any such
promotional activities.
F. NATIONAL/REGIONAL PROGRAMS
Licensor may, in its discretion, make available a national and/or one
or more regional account programs under which, through the voluntary cooperation
of its licensees in various markets, client companies with multiple market
operations may enter into a single contract arrangement for one or more of the
Primary Services or any of the Core Products, Additional Services or Additional
Products for their employees located in such markets. Licensor or its designee
may administer any such national or regional accounts program(s). In addition,
Licensor may, from time to time, utilize the Marks or permit third party
licensees of the Marks to utilize the Marks to promote the sale and distribution
of Additional Products or Additional Services in or by means of media, such as,
but not limited to, direct mail catalogs, World Wide Web pages and radio and
television broadcasts receiving wide distribution, both within and outside of
the Licensed Territory; provided, however, that no such promotional activity
shall have as its primary purpose the targeting of any single market or
territory. In addition, Licensor may also, from time to time, utilize the Marks
or permit third party licensees of the Marks to promote and sell Additional
Products or Additional Services as part of a coordinated regional or national
marketing effort including all or part.of the Licensed Territory; provided,
however, that no such promotional activity shall have as its primary purpose the
targeting of any single market or territory.
G. DESIGNATION OF PRIMARY SERVICES
1. Set forth on Exhibit C hereto are descriptions of the Primary
Services applicable to Licensee as of the date of this License Agreement. From
and after the date hereof, Licensor and Licensee, by executing an amendment to
Exhibit C, shall be entitled to amend the description of the Primary Services
and to add or delete services therefrom. Licensor shall be entitled to group the
Primary Services into categories (for use, among other things, in defining
Quality Standards applicable to particular Primary Services) and, with the
consent of Licensee, to add or omit one or more services from the definition of
Primary Services with regard to one or more markets constituting part of the
Licensed Territory.
14
2. Consistent with Section VI.D., to the extent necessary to prevent
Potential Customer Confusion, Licensor shall be entitled, with or without the
consent of Licensee, to amend Exhibit C hereto to modify the description of
Primary Services or to separate Primary Services into classes or categories for
the purpose of differentiating between the Primary Services (by means of tag
lines or otherwise) to be rendered in one or more markets constituting a part of
the Licensed Territory; provided, however, that any such amendment of Exhibit C
shall only become effective upon at least six (6) months written notice to
Licensee thereof.
H. DESIGNATION AND DELETION OF ADDITIONAL PRODUCTS AND SERVICES
1. Set forth on Exhibit D hereto under the headings "Additional
Products" and "Additional Services," respectively, are descriptions of
products and services which, upon thirty (30) days written notice to
Licensor, Licensee may promote or sell utilizing the Marks which are
applicable to the Additional Product or Additional Service in question, as
may be designated in Licensor's Graphic Standards Manual. Licensor may
review, from time to time, Exhibit D to this License Agreement in light of
current demographic, technological, regulatory and other circumstances
(including, without limitation, Strategic Market Changes) for the purpose of
adding or deleting products and services from the descriptions of Additional
Products and Additional Services, modifying the definitions assigned to one
or more Additional Products or Additional Services or modifying the Term of
this License Agreement or any Licensed Territory with regard thereto. In
undertaking such review, the Licensor shall consider Exhibit D in light of
the National Brand Goal. Licensor shall not be obligated to consider the
needs of any particular licensee or group of licensees in connection with its
review of Exhibit D, nor shall it have an obligation, other than as
specifically provided for herein, to inform Licensee of the progress of
such review. Any such amendment of Exhibit D shall be made pursuant to
Sections III.H.2 through III.H.5 below or pursuant to Section VI.D. hereof.
2. Based upon the review contemplated by Section III.H.1. above, or
otherwise as deemed appropriate by Licensor in its sole discretion, Licensor may
at any time, or from time to time, during the Term, upon not less than thirty
(30) days written notice to Licensee designate one or more new or additional
services or products as Additional Services or Additional Products.
3. Based upon the review contemplated by Section III.H.1. above, or
as otherwise deemed appropriate by Licensor, at any time from and after
January 1, 1999, Licensor may modify or amend Exhibit D hereto, or any
description set forth therein, and may delete products or services
constituting Additional Products or Additional Services, reduce or extend the
Term with resect to one or more Additional Products or Additional Services or
modify the Licensed Territory with regard thereto (i) immediately upon
written notice to Licensee with respect to any Additional Product or
Additional Service not then being offered to the public throughout the
Licensed Territory on a good faith, nondiscrinatory commercial basis by
Licensee under the specified Marks at the time of such written notice, (ii)
upon not less than six (6) months written notice with respect to any
Additional Product or Additional Service which is being offered to the public
throughout the Licensed Territory on a good faith,
15
nondiscriminatory commercial basis by Licensee under the specified Marks at the
time of such written notice, provided that in the event of modification or
amendment pursuant to either (i) or (ii) preceding, Licensor shall have
determined that a Strategic Market Change has occurred and that such
modification or amendment is required to reasonably permit appropriate response
thereto. A written explanation of the reason for such modification or amendment
shall accompany the written notice referred to in (i) or (ii) preceding. During
such time as Licensee can demonstrate to the satisfaction of Licensor that
Licensee is offering and actively promoting the Primary Services, long distance
service and local calling service (as further described on Exhibit D) under the
specified Marks to the public (including business, residential and mobile
consumers) throughout the Licensed Territory on a good faith, nondiscriminatory
commercial basis, Licensor may agree to refrain from licensing others to use the
Marks for other Additional Products and Additional Services in the Licensed
Territory. Any such agreement shall be subject to those conditions and
limitations as Licensor may establish.
4. For the purposes of this Section III.H., a "Strategic Market
Change" shall mean any change in economic, demographic, technological,
regulatory or competitive conditions which Licensor reasonably believes requires
a material modification in the manner in which the Primary Services, the Core
Products, the Additional Products or the Additional Services, or any of them,
are marketed or delivered, in order to continue the successful promotion of the
Marks to achieve or maintain the National Brand Goal. While it is anticipated
that a Strategic Market Change will be national in scope, and that Licensor's
response thereto will be similarly uniform, Licensor shall be entitled, subject
to Section III.B.4., to respond under this Section III.H. to Strategic Market
Changes affecting a more limited class or classes of markets.
5. Notwithstanding Section III.H.3. above, Licensee shall have a
limited right to have Exhibit D amended to restore Additional Services or
Additional Products deleted under Section III.H.3. For the ninety (90) day
period following delivery of a notice of modification or amendment under Section
III.H.3., Licensee may submit a request to Licensor to reinstate an Additional
Product or Additional Service on Exhibit D or to rescind any other modification
of Exhibit D adopted pursuant to Section III.H.3, stating its reasons therefor.
Licensor shall consider Licensee's request for reinstatement in good faith, but
shall not be obligated to amend Exhibit D. Any reinstatement of an Additional
Product or Additional Service under this Section III.H.5. shall be subject to
such conditions as Licensor shall believe appropriate under the circumstances,
consistent with the achievement or maintenance of the National Brand Goal.
I. DESIGNATION AND DELETION OF CORE PRODUCTS
1. From time to time after the date hereof, to the extent that
Licensor determines that consumers have come to expect that one or more of the
Additional Products and Additional Services described on Exhibit D, as amended
from time to time, are commonly offered as a part of any offering of nationwide,
dependable, high quality telecommunications services or are otherwise
fundamental to the achievement or maintenance of the National Brand Goal,
Licensor may, upon six (6) months written notice to Licensee, amend Exhibit D
hereto to designate those Additional Products and Additional Services as "Core
Products" and may
16
further designate an effective date for such designation. However, nationwide
call delivery and nationwide roaming as further described on Exhibit D are
existing required Core Products, and need not be further designated as such
pursuant to this Section III.H.1.
2. From and after the effective date of any designation of an
Additional Product or Additional Service as a Core Product, Licensee shall offer
such Additional Service or Additional Product under the specified Marks on a
good faith commercial basis in substantially all of the Licensed Territory, or
shall have adopted and provided to Licensor in writing a good faith plan
acceptable to Licensor for doing so promptly. Licensee shall promote using the
specified Marks and make all the Core Products available to its customers and to
the public generally in the Licensed Territory, in connection with promoting and
making the Primary Services available and shall not discriminate in terms of
price, availability or promotional efforts in favor of similar products or
services designated by other trademarks or service marks. Upon Licensor's
request. Licensee shall promptly provide a copy of its plans for offering any
Core Products under the specified Marks which it does not then offer.
3. In the event that Licensee shall fail to comply with its
obligations under Section III.1.2 above, or shall fail within six (6) months of
the effectiveness of the designation of any Additional Product or Additional
Service as a Core Product to offer (or plan to offer pursuant to a plan
submitted to and approved by Licensor and promptly thereafter implemented by
Licensee) such Core Product under the specified Marks in good faith, on a
nondiscriminatory, commercial basis in substantially all of the Licensed
Territory, Licensor shall be entitled to immediately amend Exhibit D hereto to
delete therefrom the Core Products not being offered by Licensee under the
specified Marks on a good faith, nondiscriminatory, commercial basis in
substantially all of the Licensed Territory, and shall be entitled to use or
license others to use the Marks in connection with such Core Products in the
Licensed Territory. With respect to the existing Core Products of nationwide
call delivery and nationwide roaming as further described in Exhibit D, Licensor
shall also be entitled to terminate this License Agreement pursuant to Section
XI.D. if, within six (6) months from the Effective Date, such Core Products are
not being offered by Licensee under the specified Marks on a good faith,
nondiscriminatory, commercial basis in substantially all of the Licensed
Territory.
J. OTHER LICENSES, COMPENSATION TO LICENSOR
Licensor has and may continue to license the Marks, or any of them, to
third parties for use in connection with products or services other than Primary
Services, Core Products, Additional Products, or Additional Services. (For
example, Licensor has licensed one of the Marks to a third party marketer of
children's toys). Such licenses, subject to Licensee's rights set forth in
Section I, may permit use of the Marks by such third party licensees to promote
and sell products and services, other than Primary Services, Core Products,
Additional Services and Additional Products, within the Licensed Territory. As
part of such licensing arrangements, Licensor has, and may, from time to time
hereafter, receive fees or other consideration from third parties who provide
goods and services to licensees of the Marks in connection with
17
promotional or other programs arranged by Licensor. Licensee shall have no claim
or right with regard to any such fee or consideration or the arrangements giving
rise thereto.
K. RESELLER ARRANGEMENTS
In the event this License Agreement is being executed and delivered by a
licensee who is being licensed to resell Cellular Telephone Services or an
Alternate Wireless Service, it is anticipated that certain terms and conditions
applicable herein to providers of such services will need to be modified and
that certain additional terms and conditions may need to be added hereto to
accommodate the differences between the provision of such services directly by a
provider and by a reseller of such services. Accordingly, as necessary, in any
such event, the parties hereto shall complete and attach hereto an appropriate
Exhibit G to reflect such modified or additional terms and conditions and such
Exhibit G shall thereafter be deemed to be incorporated
herein and made a part hereof for all purposes.
IV. DUTIES OF LICENSEE
All duties of Licensee under this License Agreement are to Licensor, and no
other party is entitled to rely on, enforce or obtain relief for breach of any
such obligation, either directly or by subrogation. Licensee understands and
acknowledges that the high quality operation of its business under the Marks is
important to Licensee, Licensor and other licensees of the Marks in order to
maintain high operating standards and to protect the reputation of, and goodwill
associated with, the Marks. Toward that end, Licensee acknowledges and accepts
the following duties:
A. QUALITY OF SERVICE
1. Licensee agrees to provide high quality Primary Services and Core
Products and, to the extent provided, high quality Additional Services and
Additional Products, to its customers by, among other things, complying with
this License Agreement and the applicable Quality Standards Upon, six (6) months
written notice of the modification of or addition to the Quality Standards,
Licensee shall cause its Primary Services, Core Products, Additional Services or
Additional Products to comply therewith; provided, however,that Licensee shall
be entitled to adopt a plan reasonably acceptable to Licensor to discontinue the
offering of any Additional Services or Additional Products in lieu of complying
with the Quality Standards relating thereto, provided such Additional Products
or Additional Services do not constitute Core Products.
2. Licensee shall attain and maintain an overall minimum customer
satisfaction rating of at least 85% (or such increased level as may be required
pursuant to the provisions of this Section IV.A.) with regard to the Licensed
Territory as a whole (on a population weighted basis) and more than 70% with
respect to any market constituting a part thereof, with regard to Licensee's
Primary Services and Core Products. If Licensee has licenses
18
to use the Marks in more than one Licensed Territory pursuant to additional
license agreements with Licensor, Licensee shall be obligated to achieve an
overall minimum customer satisfaction rating of 85% (or any increased level
adopted) for all of such Licensed Territories (on a population weighted basis),
and more than 70% with respect to any market constituting a part thereof.
Licensor reserves the right to increase the overall minimum acceptable customer
satisfaction rating to a percentage greater than 85% if Licensor, in its
reasonable discretion, determines that such higher percentage is appropriate
given the technical state of the industry delivering Primary Services, Core
Products, Additional Products and/or Additional Services at such time; provided,
however, that the Advisory Council must approve any such increase in the minimum
acceptable customer satisfaction rating, and such increase shall not be
effective until the beginning of the next calendar year following the Advisory
Council's approval. In the event that a customer satisfaction survey conducted
by Licensor pursuant to Section III.C. of this License Agreement results in an
overall minimum customer satisfaction rating below 85% (or below any higher
percentage established by Licensor as described above), but more than 70%, in
Licensee's Licensed Territory or Licensed Territories as a whole (on a
population weighted basis), then Licensee will be assigned probation status
under Section XI.E. of this License Agreement and surveys will be commissioned
in the market(s) in the Licensed Territory or Licensed Territories, as the case
may be, which did not achieve a rating of at least, 85% (or any higher
percentage established by Licensor), from time to time thereafter as Licensor
deems appropriate until Licensee has achieved an overall minimum customer
satisfaction rating of at least 85% (or any higher percentage established by
Licensor as described above) and the probation status is removed, or until this
License Agreement is terminated, as herein provided, whichever shall first
occur. Licensee agrees to pay the reasonable direct costs of conducting such
additional customer satisfaction survey(s).
3. During the Term, Licensee shall provide the Primary Services and
Core Products throughout the Licensed Territory, and shall maintain, or cause
others to maintain on its behalf, a sufficient number of customer service
locations and other facilities, including retail storefronts or similar
facilities, to permit customers and potential customers convenient access to
Primary Services, Core Products, Additional Products and Additional Services,
consistent with existing competitive conditions and in accordance with the
Quality Standards.
B. LEGAL COMPLIANCE
1. Licensee agrees to comply, at its own expense, with all applicable
laws, ordinances and regulations of federal, state, county or municipal
authorities. Licensee will also obtain and maintain, at its own expense, all
permits, approvals, licenses and franchises and shall make all required filings,
applications and reports to all government or administrative entities or self
regulatory organizations as shall be necessary, from time to time, to provide
those of the Primary Services, the Core Products, the Additional Services or the
Additional Products as Licensee may then be providing, and to otherwise engage
in business, generally, throughout the Licensed Territory (collectively, the
"Permits"). Without limiting the generality of the foregoing, Licensee's
obligation under this Section IV.B. shall include the maintaining of Licensee's
qualification to do business throughout the Licensed Territory, and the filing
of all
19
income and franchise tax returns with respect to Licensee's operations. In the
event that any of Licensee's material Permits is scheduled to expire during the
Term, including any renewal of such Term, Licensee agrees TO comply with all
requirements for extension of said Permit prior to such expiration. Licensee
shall notify Licensor in writing within five (5) days after receipt of any
notice from the FCC or any other governmental authority regarding an actual or
threatened termination or revocation of any Permit material to the provision of
the Primary Services, Core Products, Additional Products or Additional Services
by Licensee within the Licensed Territory, including any license by the FCC to
conduct business as a provider of telecommunications services or necessary to
construct facilities relating to telecommunications services, and shall within
such time provide a copy of any such notice to Licensor. In addition, Licensee
shall notify Licensor within five (5) days after becoming aware of the
commencement of any action, suit or proceeding, or the issuance of any order,
writ, injunction, award or decree of any court, agency or other governmental
instrumentality which could have a material adverse effect on the operation or
financial condition of Licensee's business as it relates to the Primary
Services, the Core Products, the Additional Services or the Additional Products.
2. To the extent that Licensee's business is dependent upon one or
more agreements with a provider of Primary Services, Core Products, Additional
Services or Additional Products for which Licensee acts as a reseller, "Permits"
shall include such contractual relationship and the license granted hereunder
shall be dependent upon the continuation thereof in good standing.
3. Licensee represents and warrants that it possesses all Permits
necessary to the conduct of its business and to the business of providing the
Primary Services, Core Products, Additional Services and Additional Products
within the Licensed Territory, including, if applicable, any Permits necessary
to permit it to act as a reseller of services provided by others.
C. BUSINESS PRACTICES
Licensee shall maintain a competent, conscientious, trained staff.
Neither Licensor nor Licensee shall engage in any trade practice or other
activity which is harmful to the goodwill or reflects unfavorably on the Marks
or on the reputation of Licensee, Licensor, Licensee's business or other
licensees of Licensor, or which constitutes deceptive or unfair competition,
consumer fraud or misrepresentation.
D. INFORMATION TO LICENSOR
1. Upon Licensor's request, subject to the confidentiality
requirements described in Section III.C., Licensee must, in connection with any
customer satisfaction survey Licensor elects to conduct in accordance with
Section III.C., promptly furnish to the Survey Company designated by Licensor a
complete and accurate customer list of all of its subscribers and customers for
its Primary Services, Core Products, Additional Products and Additional
Services, as a whole or separately, in a format reasonably prescribed by
Licensor, including computerized magnetic media, together with such reasonable
information which the Survey
20
Company shall require in connection with the performance of its duties. Licensee
hereby gives the Survey Company permission to contact any and all of its
subscribers and customers in conducting a customer survey to ascertain the
quality level of Licensee's services and products and obtain related market
research data in accordance with the methodology set forth in Exhibit F or as
Licensor may reasonably deem appropriate. Licensee shall promptly provide
Licensor with additional information reasonably requested by Licensor regarding
matters such as Licensee's legal status (for example, any Change in Control),
affiliated companies, dealers, agents, retailers, Primary Services, Core
Products, Additional Products and Additional Services being provided or sold
utilizing the Marks, Licensee's use of the Marks, including Incidental Use and
Potential Customer Confusion, and other matters which Licensor may reasonably
determine are relevant to Licensee's performance under this License Agreement.
2. At Licensor's request, Licensee shall promptly provide Licensor
with a copy of each Permit necessary or related to its business of providing
Primary Services, Core Products, Additional Services or Additional Products
using the Marks (with the financial details thereof deleted or redacted if
Licensee so chooses), together with any amendments, termination or other notices
relating thereto.
3. At Licensor's request, Licensee shall promptly provide Licensor
with a copy of Licensee's most recent financial statements for the most recently
completed fiscal year and any subsequent interim periods, including reports of
auditors, if any, and supporting schedules, relating to Licensee's business of
providing Primary Services, Core Products, Additional Services or Additional
Products using the Marks.
E. VOTING BY LICENSEES
Licensor shall be entitled, from time to time, during the Term, or at
any time with regard to a Term to commence in the future, to submit a proposed
amendment to this License Agreement and any Exhibits hereto, to all of its
licensees which have executed Revised Licenses, with a request that such
licensees indicate their approval or disapproval thereof by written ballot.
Unless licensees which have executed Revised Licenses with Licensor and which
are obligated to pay in excess of 50% of the aggregate of all Annual License
Fees payable by all similarly situated licensees shall vote against such
amendment, this License Agreement, and the applicable Exhibits hereto, shall be
amended as proposed by Licensor in the material submitted to the licensees.
Notwithstanding the foregoing, without the express written consent of Licensee,
no amendment to this License Agreement approved under this Section IV.E. shall,
with regard to prior time periods or events taking place prior to the adoption
thereof, increase Licensee's obligations to pay any amounts to Licensor or
otherwise undertake any obligations to Licensor or any other party. In addition,
no amendment to this License Agreement approved solely pursuant to this Section
IV.E. shall (i) modify the Licensed Territory, (ii) prohibit or prevent
Licensee from providing the Primary Services under the Marks in the Licensed
Territory, or (iii) permit Licensor to license others to use the Marks for
providing Alternate Wireless Services or Cellular Telephone Services in the
Licensed Territory. Any notice provided by Licensor hereunder requiring an
approval or disapproval of an amendment to this License Agreement or
21
any Exhibits hereto shall be. delivered to Licensee in accordance with the
notice provisions of this License Agreement not less than ninety (90) days
prior to the proposed effectiveness thereof. Licensor shall be entitled to
set forth in any notice proposing an amendment to this License Agreement or
any Exhibits hereto an effective date more than ninety (90) days following
the delivery of notice with regard thereto. Licensees which fall to respond
to a request by Licensor to approve or disapprove of an amendment to this
License Agreement or any Exhibits hereto within sixty (60) days after
delivery of the proposed amendment shall be deemed to have consented to such
amendment. This Section IV.E. shall not modify or limit any of Licensor's
other rights provided for in this License Agreement, including but not
limited to Licensor's rights to amend Exhibits to this Agreement under
Sections III or IV, to the extent permitted therein, or to modify or impose
the fees or other charges, to the extent such modification is permitted,
required of Licensee under Sections V or VIII hereof. Only Licensor shall
have the right to propose an amendment to this License Agreement or any
Exhibits under this Section IV.E.
F. SIGNAGE, PROMOTION
1. For each market in the Licensed Territory, Licensee shall, at its
own expense, cause the Cellular One Xxxx to be used or incorporated with such
reasonable prominence in such advertising and other business references to
Licensee as may be appropriate to create a clear impression, among the general
public, that Licensee is affiliated with the Cellular One program. Without
limiting Licensee's obligation to comply with the foregoing, Licensee shall, for
each market in the Licensed Territory, associate Licensee and the Cellular One
name in the telephone "yellow pages" and "white pages" directory listings, and
at least cause the Cellular One Xxxx to be used or incorporated on or in each of
the following, insofar as they relate to Licensee's business utilizing the
Marks:
(i) Licensee's customer billing statements and the accompanying
envelopes;
(ii) Licensee's advertising media, including without limitation,
print advertising, brochures, marketing materials, point-of-sale materials,
billboards and broadcast media such as radio and television advertising, on
line advertising, home pages on the World Wide Web and other computer
accessible information;
(iii) The greetings, introductions or opening messages of
Licensee's telephone operators, voice mall, telephone answering machines
and other call answering services, in response to customer and prospective
customer inquiries;
(iv) Licensee's stationery, business cards, notices and other
mailouts, and, to the extent practicable, any press or other media coverage
afforded Licensee; and
22
(v) Signs or displays on the exterior and interior of each of
Licensee's facilities which interface with customers or prospective
customers In the Licensed Territory.
2. To the extent required by this License Agreement, pursuant to
Sections III.A., VI.B.. VI.D. or otherwise, Licensee shall, at its own expense,
modify its usage of the Marks and adopt tag lines, icons or similar marks or
variations, and modify the signage and other items described in Section IV.F.1.
above as may be appropriate, within one (1) year or such shorter period as
Licensor may reasonably require or as may be otherwise provided in this License
Agreement.
3. Licensee shall use the Cellular One Xxxx (or any xxxx substituted
therefor by Licensor) as the principal service xxxx or trademark, as
appropriate, designating Primary Services and Core Products sold or distributed
by it within the Licensed Territory and shall otherwise use the applicable Marks
in connection with Additional Products and Additional Services in the Licensed
Territory to the extent commercially reasonable and as required by this License
Agreement. Use of the Marks will be strictly in accordance with the Graphic
Standards Manual as amended from time to time. Licensee shall only use those
Marks as are specified by Licensor in connection with each of the Additional
Products and Additional Services.
G. DEALERS, AGENTS AND RETAILERS
In the event that, pursuant to this License Agreement, Licensee
permits its authorized dealers, agents or retailers to use the Marks in the
Licensed Territory, such dealers, agents and retailers shall be subject to the
obligations set forth in this License Agreement and those imposed upon such
parties by Licensee; provided, however, that unless required by Licensee, such
dealers, agents and retailers need not necessarily comply with the specific
obligations of Sections IV.F.1.(i), IV.F.1.(iii) and IV.F.1.(iv) hereof in
connection with each dealers', agents' or retailers' use or incorporation of the
Marks on or in the items therein listed.
H. ADDITIONAL PRODUCTS AND SERVICES
1. Set forth on Exhibit D hereto under the headings "Additional
Products" and "Additional Services," respectively, are certain products and
services relating to the Primary Services with regard to which, upon notice to
Licensor, Licensee may promote or sell utilizing the Marks as therein specified.
2. In the event that Licensee shall elect to use the Marks within all
or any part of the Licensed Territory in connection with one or more of the
specified Additional Products or Additional Services, Licensee shall provide
Licensor not less than thirty (30) days written notice of such intended use,
together with a description of Licensee's business and promotional plans with
regard thereto and the portion of the Licensed Territory to which such use will
relate.
23
I. USE OF THE CELLULAR ONE TRADEMARK
In order to protect and enhance the Cellular One Xxxx and the goodwill
pertaining thereto, Licensee shall, consistent with Exhibit D, use the Cellular
One Xxxx only on or in connection with first class, high quality
telecommunications equipment and related devices further described as an
Additional Product on Exhibit D hereto (collectively, the "Wireless
Communications Equipment"). Any such Wireless Communications Equipment shall be
sold or distributed only in accordance with all applicable federal, state and
local laws, including, without limitation, all applicable FCC directives and
other industry standards issued from time to time by the CTIA, the Electronics
Industries Association and comparable industry groups, and which, if available
for the type of Wireless Communications Equipment in question, has earned a
certification seal issued by the CTIA. Licensee shall, upon execution of this
Agreement, and from time to time thereafter upon request by Licensor, promptly
furnish to Licensor, at no charge, a listing of all of the various types of
Wireless Communications Equipment sold or otherwise distributed by Licensee, and
upon which or in connection with which the Cellular One Xxxx is used. The nature
and quality of such Wireless Communications Equipment shall be subject to review
by Licensor to insure compliance with this Agreement.
J. CONSUMER SERVICE NUMBER
Licensee shall have the obligation to use and promote and a
nonexclusive right to make use of a toll free national consumer service number
designated by Licensor (the "Consumer Service Number"). as a toll free service
to Licensee's customers and prospective customers in the Licensed Territory, to
use the 1-800-CELL ONE Xxxx and marks associated therewith and to pay an annual
fee to Licensor described in Section V.E. and in accordance with the following
terms and conditions:
1. (a) Licensor will, from time to time, establish and maintain a
national consumer service telephone number, operated twenty-four hours a day,
seven days a week. Currently the number established by Licensor is 1-800-CELL
ONE (0-000-000-0000). Licensee shall arrange with a long distance carrier (the
"Long Distance Carrier") for a network-based routing system to cause such calls
to the Consumer Service Number from customers and prospective.customers of
Licensee in; the Licensed Territory (including customers of Licensee roaming
from the Licensed Territory) to be automatically (i) routed to Licensee, or to a
designated center as further described below or (ii) provided with a prerecorded
intercept announcement or (iii) routed as may be required pursuant to Section
IV.J.3. or any agreement entered into by Licensee pursuant thereto. All
arrangements necessary for the routing of calls to Licensee or the delivery of
prerecorded intercept announcements shall be made between Licensee and the Long
Distance Carrier. In no event will Licensor route calls made to the Consumer
Service Number to Licensee, or cause any such calls to be so routed. It is
anticipated that Licensee will provide customers and prospective customers
calling the Consumer Service Number with assistance, information and/or
promotional literature in response to inquiries concerning such matters as
activation, suspension or disconnection of service, service plans, promotions,
billing, pricing, roaming, dialing instructions, access numbers, feature codes,
the
24
locations, hours of operation and telephone numbers of offices, authorized
repair facilities and sources for batteries, parts and accessories, and such
other matters as may be set forth in the 800 Number Supplement (hereinafter
defined).
(b) Licensor will provide Licensee with a supplement to Exhibit E
(the Quality Standards) and the Guide to Quality Operations (collectively, the
"800 Number Supplement"), containing requirements and suggestions for the
operation of the Consumer Service Number program, including the services which
Licensee must have the capability of offering during various times to callers to
the Consumer Service Number which are routed to the Licensee by the Long
Distance Carrier, and other materials as Licensor deems appropriate. Licensor
may from time to time, in its discretion, issue additional supplements,
modifications and additions to the Guide to Quality Operations or the 800 Number
Supplement. Licensor may, in its discretion, expand or introduce new features to
the Consumer Service Number program and may afford Licensee the opportunity to
participate therein by executing an addendum to this Agreement or other suitable
document.
(c) From time to time, at its sole election, Licensor may select
and designate a substitute telephone number to serve as the Consumer Service
Number and Licensee shall take such steps as shall be necessary to utilize such
substituted number in place of the prior telephone number serving as the
Consumer Service Number and shall cease any use of such prior number in
accordance with any schedule reasonably promulgated by Licensor with regard
thereto.
2. Licensee shall establish and maintain adequate staffing and
telephone capacity in relation to the subscriber base and call volume of the
Licensed Territory, in order to promptly and adequately receive and respond to
calls routed to Licensee through the Consumer Service Number; provided however,
that Licensee may establish a centralized location with such capabilities to
serve multiple markets for which Licensee has entered into a License Agreement
with Licensor, if applicable. Licensee agrees that it will not impose any
airtime charges or other charges upon the caller for calls made to the Consumer
Service Number, whether such calls are made by customers, prospective customers,
roamers or otherwise. Licensee shall cause its billing department or, if
applicable, use its best efforts to cause each of its billing companies or
providers of Primary Services, to nonrate calls to the Consumer Service Number
made from the Licensed Territory, and to delete any per diem roaming fees if
calls from the Licensed Territory to the Consumer Service Number are the only
roamer calls made during the twenty-four hour daily billing period. Licensee
shall offer credit card roaming capability for its customers, with respect to
the Licensed Territory, for the purpose of allowing call processing for
customers with validation problems when the serving switch in the home market is
not accessible.
3. Within thirty (30) days of the Effective Date of this License
Agreement, Licensee shall make appropriate arrangements with the Long Distance
Carrier for the routing of calls to the Licensed Territory and, in conjunction
therewith, shall be providing service to customers and prospective customers in
accordance with the Quality Standards and the Guide
25
to Quality Operations (including the 800 Number Supplement) twenty four hours a
day, three hundred sixty-five days a year. Licensee may phase in such customer
service operations over a period not to exceed six (6) months following the
Effective Date hereof, but within (30) days after the Effective Date of this
Agreement, Licensee shall, at a minimum, promptly accept and fully respond to
all calls routed to Licensee through the Consumer Service Number from 8:00 a.m.
to 6:00 p.m., local time, Monday through Friday, excluding national holidays.
During such times, the calls routed to the Licensed Territory by the Long
Distance Carrier must be handled by Licensee's own or contracted service
personnel (other than answering services) unless other arrangements satisfactory
to Licensor are made, and the various types of callers (customers, roamers,
prospects, etc.) must be provided with service respecting at least those
categories as set forth in the Guide to Quality Operations (including the 800
Number Supplement). Outside of such times, (i) Licensee has the option of
handling the calls with its own or contracted service personnel (other than
answering services), arranging for other licensees in good standing of the Marks
to handle the calls, arranging for third parties acceptable to Licensor to
handle the calls, or arranging for the calls to be answered by an automated
voice response system, with live operator backup preferred (although a response
system with the capability for the caller to leave a recorded message will be
acceptable); and (ii) not later than six (6) complete calendar months following
the Effective Date of this License Agreement; such callers must be provided with
service respecting at least those categories as set forth in the Guide to
Quality Operations (including the 800 Number Supplement) for such times.
4. Licensee shall at its own expense include the Consumer Service
Number in Licensee's telephone directory listings for the Licensed Territory,
including "White Pages" and "Yellow Pages" listings (under "Cellular
Telephones", "Mobile Telephones," "Radiotelephones" or other category denoting
telecommunications services and equipment, as appropriate), and in Licensee's
promotional and marketing materials. Licensee agrees to actively promote the
Consumer Service Number in the Licensed Territory, but may also utilize its own
toll free numbers or other numbers in the Licensed Territory.
5. Licensor shall in no event be liable by reason of any act or
omission of Licensee or any third party licensee in the conduct of its business
or for any claim or judgment arising therefrom or for any claim or judgment by
third parties (including without limitation, the Long Distance Carrier,
Licensee's customers, prospective customers, dealers, retailers, agents,
resellers, or the like) arising from or relating to the establishment and the
operation of the Consumer Service Number, and Licensee shall indemnify and hold
Licensor, Licensor's employees, the Partnership Partners and their affiliates,
and their respective officers, directors, employees and stockholders, harmless
from and against any and all claims and judgments, as well as the costs,
including attorneys' fees, of defending against them. Licensee acknowledges that
Licensor shall not be responsible for any direct, consequential or incidental
damages of any kind resulting from or relating to the Consumer Service Number,
the related program or the operation thereof, or the acts or omissions of the
Long Distance Carrier, including without limitation, damages relating to
possible loss of customers or prospective customers by Licensee or its dealers,
retailers, agents, resellers, or the like.
26
6. Licensee agrees to promptly provide the Long Distance Carrier with
such complete current and reserve cellular NPA/NXX listings and other
information and data as may be reasonably requested by the Long Distance Carrier
to permit the Long Distance Carrier to provide an efficient and effective
routing of calls and delivery of intercept announcements to Licensee and to
assure that calls which should be routed to other licensees of the Consumer
Service Number are not being affected by Licensee's arrangements with the Long
Distance Carrier. All payments and other similar arrangements which may be
necessary to permit the Long Distance Carrier to route calls or provide
intercept services and prerecorded announcements to callers shall also be the
responsibility of Licensee, shall be determined by and between Licensee and the
Long Distance Carrier, and Licensor shall have no obligation or liability
whatsoever with respect thereto. Licensee agrees to promptly provide directly to
Licensor and/or to cause the Long Distance Carrier to promptly provide to
Licensor such information as Licensor may from time to time reasonably request
in order to permit Licensor to protect the Marks and/or to ascertain Licensee's
compliance with Licensee's obligations under this Agreement.
7. In the event Licensee's agreement with the Long Distance Carrier
expires or is terminated for any reason with respect to any market in the
Licensed Territory, Licensee's rights with respect to the Consumer Service
Number and the 1-800-CELL ONE Xxxx shall automatically terminate with respect to
such market. In the event Licensor decides to discontinue the Consumer Service
Number or the related program, Licensor may terminate Licensee's rights with
respect to the Consumer Service Number and the 1-800-CELL ONE Xxxx upon ninety
(90) days prior written notice to Licensee.
8. The parties agree that Licensor is not offering herein to resell
800 service or other telecommunications services, and no portion of the annual
Consumer Service Number Fee is compensation for any such resale. Licensee shall
have no right to resell 800 service using the Consumer Service Number to any
other person or entity. If Licensee chooses to permit its authorized dealers,
retailers or agents in the Licensed Territory to use the Consumer Service Number
and the 1-800-CELL ONE Xxxx, Licensee acknowledges, for itself and on behalf of
its dealers, retailers and agents, that the applicable calls by callers to the
Consumer Service Number will be routed by the Long Distance Carrier to Licensee,
and not to any such dealers, retailers and agents of Lice=e, and that the calls
will be toll free and free of roaming and airtime charges upon the callers as
set forth above.
9. Licensee acknowledges and agrees that it shall have no ownership
interest in the Consumer Service Number, any telephone number, Xxxx or acronym
serving as or associated with a current or previous Consumer Service Number or
any agreements relating thereto, notwithstanding any actual or implied
agreements between Licensee and the Long Distance Carrier, any tariffs or
permits applicable or related to the Consumer Service Number or any contract or
course of dealing relating thereto. Without modifying the foregoing, Licensee
hereby grants Licensor an irrevocable power of attorney, which shall be coupled
with an interest, to act in Licensee's place and stead and to execute and
deliver any agreements, instruments, certificates, pleadings or the like
reasonably necessary to disclaim any interest by
27
Licensee in the Consumer Service Number, any telephone number, Xxxx or acronym
serving as or associated with a current or previous Consumer Service Number or
any agreements relating thereto, and to vest in Licensor full title thereto. In
addition, Licensee shall, from time to time, at the request of Licensor or the
Long Distance Carrier, promptly execute and deliver such further agreements,
instruments, certificates, pleadings and the like as Licensor shall reasonably
deem necessary to give effect to this Section IV.J.9.
V. FEES AND REPORTING
A. APPLICATION FEE
Upon execution of this License Agreement by Licensee, Licensee shall
pay to Licensor a nonrefundable application fee (the "Application Fee") of five
hundred dollars ($500.00) per market in the Licensed Territory; provided,
however, that no Application Fee with respect to a particular market shall be
payable in the event that this License Agreement is being executed as a renewal,
extension or modification of an outstanding Cellular One License Agreement
between Licensee and Licensor covering such market in the Licensed Territory or
in the event of a market transfer or Change of Control (the latter events being
subject, however, to the transfer fee described in Section V.H. hereof).
B. ANNUAL LICENSE FEE
Licensee agrees to pay to Licensor an annual license fee (the "Annual
License Fee") based on the total population of each of the markets in the
Licensed Territory (the "Pops") as determined by the most recent population
estimates produced by an independent company selected in good faith by Licensor,
with a minimum Annual License Fee of three thousand dollars ($3,000.00) per
market in the Licensed Territory for each year during the Term. If the Effective
Date of this License Agreement or the commencement of a Subsequent Year is on or
before December 31, 1997, the Annual License Fee for the Initial Year or the
Subsequent Year, as the case may be, shall be equal to two cents ($0.02) per
person in the Licensed Territory, but not less than the foregoing minimum. If
the Effective Date of this License Agreement or the commencement of a Subsequent
Year is after December 31, 1997, the Annual License Fee for the Initial Year or
the Subsequent Year, as the case may be, shall be calculated in accordance with
Section V.E. below, but shall not be less than the foregoing minimum. The Annual
License Fee shall be due on each January 1 and payable on or before each January
31 of each Subsequent Year during the Term, for the full calendar year; provided
however, that the Annual License Fee for the Initial Year shall be paid upon
execution of this License Agreement by Licensee. Notwithstanding the foregoing,
if the Initial Year commences on a day other than January 1, the Annual License
Fee for the Initial Year (including the foregoing minimum fee, if applicable)
shall be prorated to reflect the portion of that calendar year included within
the Initial Year. The Annual License Fee will not be prorated or refunded in
whole or in part under any other circumstances; provided, however, that upon the
normal expiration of this License Agreement at the end of the Term or any
renewal Term (but in no other event, including without
28
limitation, upon the voluntary or involuntary termination of this License
Agreement for any reason), Licensor agrees to refund a prorated portion of the
Annual License Fee reflecting that portion of that calendar year remaining after
the date of expiration, less any set off for any other fees owing to Licensor.
C. ANNUAL ADVERTISING FEE
Licensee agrees to pay to Licensor's Cellular One Promotional Fund an
annual advertising fee (the "Annual Advertising Fee") based upon the population
estimates described in Section V. B. above. If the Effective Date of the License
Agreement is on or before December 31, 1996, the Annual Advertising Fee for the
Initial Year shall be equal to five cents ($0.05) per person in the Licensed
Territory. If the Effective Date of this License Agreement or the commencement
of a Subsequent Year is between January 1, 1997 and December 31, 1997, then the
Annual Advertising Fee for the Initial Year or Subsequent Year, as the case may
be, shall be equal to six cents ($0.06) per person in the Licensed Territory. If
the Effective Date of this License Agreement or the commencement of a Subsequent
Year is between January 1, 1998 and December 31, 1998, then the Annual
Advertising Fee for the Initial Year or Subsequent Year, as the case may be,
shall be equal to seven cents ($0.07) per person in the Licensed Territory. If
the Effective Date of this License Agreement or the commencement of a Subsequent
Year is after December 31, 1998, then the Annual Advertising Fee for the
Initial. Year or the Subsequent Year, as the case may be, shall be calculated in
accordance with Section V.E. below. The Annual Advertising Fee shall be due on
each January 1 and payable on or before each January 31 of each Subsequent Year
during the Term, for the full calendar year; provided, however, the Annual
Advertising Fee for the Initial Year shall be paid upon execution of this
License Agreement by Licensee. Notwithstanding the foregoing, if the Initial
Year commences on a day other than January 1, the Annual Advertising Fee for the
Initial Year shall be prorated to reflect the portion of that calendar year
included within the Initial Year. The Annual Advertising Fee will not be
prorated or refunded in whole or in part under any other circumstances. For any
Initial Year or Subsequent Year beginning on or before January 1, 1998, if
Licensee can demonstrate to the satisfaction of Licensor that Licensee had less
than three hundred thousand (300,000) billable minutes of air time for each
month in the preceding calendar year in a market in the Licensed Territory,
Licensee shall not be obligated to pay the Annual Advertising Fee with respect
to such market for such Initial Year or Subsequent Year, as the case may be.
Licensor agrees to accept, and may require, the bona fide report of Licensee's
independent outside auditing firm as appropriate confirmation that Licensee has
less than the three hundred thousand (300,000) billable minutes of air time for
each month as described above. The foregoing exemption from payment of the
Annual Advertising Fee shall in no event extend beyond the Annual Advertising
Fee due for 1998. To the extent that geographic, demographic or social factors
(such as a location of a market outside of the continental U.S. or the use in a
particular market in the Licensed Territory of a dominant language other than
English) limit the effectiveness of Licensor's promotional efforts with respect
to such market in the Licensed Territory, Licensor may, but shall not be
obligated to, consider an adjustment to the Annual Advertising Fee payable under
this Section V.C. or
29
adjusting its promotional activities to improve the effectiveness thereof in
such market in the Licensed Territory.
D. ANNUAL ADMINISTRATIVE FEE
From time to time, upon not less than thirty (30) days written notice
to Licensee, Licensor shall be entitled to levy, and Licensee shall pay, a
nonrefundable annual administrative fee (the "Annual Administrative Fee"), not
to exceed, each calendar year, one-half of one cent ($0.005) per person in the
Licensed Territory as determined in a manner consistent with that applied to the
determination of the Annual License Fee, in the event that Licensor determines
that such a fee is necessary to defray Licensor's administrative costs,
including costs associated with professional fees and expenses, incurred in
connection with performing Licensor's duties under this License Agreement and
otherwise protecting and promoting the Marks and assuring that the Quality
Standards continue to be consistent with changing market conditions and
technological change. In the event that Licensee provides Primary Services as a
reseller for more than one provider of Cellular Telephone Services or any form
of Alternate Wireless Service, Licensor shall be entitled to receive an
additional Annual Administrative Fee (or such part thereof as Licensor shall
deem appropriate) with regard to each such reseller relationship, reflecting the
increased costs of conducting customer surveys and otherwise monitoring
Licensee's performance under this License Agreement.
E. ESCALATION OF LICENSE AND ADVERTISING FEES
In addition to any other increases in the Annual License Fee and the
Annual Advertising Fee which are permitted herein, Licensor may, in its sole
discretion, increase the Annual License Fee payable for any Initial Year or
Subsequent Year commencing on or after January 1, 1998, and/or increase the
Annual Advertising Fee payable for any Initial Year or Subsequent Year
commencing on or after January 1, 1999, by amounts commensurate with the
increases In the Consumer Price Index or media expenses, as the case may be, in
accordance with the following:
1. Annual License Fee for the applicable Initial Year or Subsequent
Year (subject to the minimum Annual License Fee of $3,000.00 per
market in the Licensed Territory)=
$0.02 X CPI-2 X Pops
CPI-1
where:
(a) "CPI" shall mean the monthly National Consumer Price Index
for All Urban Consumers, U.S. City Average (All Items; 1982-84 equals 100)
issued by the U.S. Department of Labor, Bureau of Labor Statistics, or its
successor agency, or if such index is no longer in effect, the successor index
thereto;
30
(b) "CPI-1" shall mean the monthly CPI for the month of June,
1996;
and
(c) "CPI-2" shall mean the higher of (i) CPI-1 or (ii) the
monthly CPI for the latest calendar month which ends at least six (6) months
before the commencement of the applicable Initial Year or Subsequent Year for
which the adjustment of fee(s) is being computed.
2. Annual Advertising Fee for the applicable Initial Year or
Subsequent Year=
$0.07 X MC-2 X Pops
MC-1
where:
(a) "MC-1" shall mean the actual media buy liabilities incurred
by Licensor in connection with Licensor's obligations and activities under
Section VIII of this License Agreement for the immediately preceding annual
period;
(b) "MC-2" shall mean the higher of (i) MC-1 or (ii) the media
buy liabilities Licensor would incur in the following annual period if it
engaged in the activities and purchased the goods and services giving rise to
the media buy liabilities constituting MC-1. In making the determination
required by the preceding sentence, Licensor shall utilize the "netcosts(TM)"
reports publication describing Broadcast Network, Cable Network and Syndication
CPM and CPP projections published by Xxxxxx, Xxxxxxxx & Xxxxxx, Inc., or any
successor or equivalent index generally utilized by the industry to estimate
future costs associated with promotional activities.
F. CONSUMER SERVICE NUMBER FEE
During such time as Licensor makes the Consumer Service Number program
available to licensees, Licensee shall pay to Licensor an annual Consumer
Service Number fee (the "Consumer Service Number Fee") equal to one thousand
dollars ($1,000.00) for each MSA and five hundred dollars ($500.00) for each RSA
constituting a part of the Licensed Territory, subject to a maximum fee payable
under this Section V.F. of thirty thousand dollars ($30,000.00) with respect to
the Licensed Territory or all of Licensee's Licensed Territories under other
License Agreements with Licensor. The Consumer Service Number Fee shall be due
on each January 1 and payable on or before each January 31 of each Subsequent
Year during the Term, for the full calendar year; provided however, the Consumer
Service Number Fee for the Initial Year shall be paid upon execution of this
License Agreement by Licensee. Notwithstanding the foregoing, if the Initial
Year commences on a day other than January 1, the Consumer Service Number Fee
for the Initial Year shall be prorated to reflect the portion of that calendar
year included within the Initial Year. The Consumer Service Number Fee will not
be
31
prorated or refunded in whole or in part under any other circumstances. The
Consumer Service Number Fee shall be in addition to any other charges or fees
that may be payable by Licensee to any Long Distance Carrier for the Consumer
Service Number program, as contemplated by Section IV.J. hereof. In addition to
the Consumer Service Number program, Licensor may establish similar programs for
other forms of wireless telephony (the "Other 800 Programs"). To the extent that
the Primary Services or Core Products include such forms of wireless telephony,
Licensee shall participate in the Other 800 Programs designed therefor. Licensor
shall be entitled to receive fees from Licensee for the Other 800 Programs
calculated in a similar manner as those for the Consumer Service Number program.
G. ADDITIONAL FEES
From time to time following the date hereof, Licensor may propose,
pursuant to Section IV.E. hereof, changes to or the implementation of one or
more periodic fees to be payable by licensees with regard to the Primary
Services, Core Products, Additional Products or Additional Services, or other
fees deemed appropriate by Licensor. Upon approval thereof in accordance with
Section IV.E., such fees shall become an obligation of Licensee hereunder.
H. SPECIAL LICENSEE RELATED EXPENSES
Licensor shall be entitled to levy, and Licensee shall promptly pay, a
fee of not less thin five hundred dollars ($500.00) per market with regard to
any Change of Control of Licensee or assignment by Licensee of its rights and
obligations hereunder (including any transfer or Change of Control of a market
constituting part of the Licensed Territory) or upon any other assignment,
transfer, pledge, Change of Control or other transaction contemplated or
permitted under Article X.
I. PAYMENTS, INTEREST ON LATE PAYMENTS
All fees and charges payable under this License Agreement shall be
payable in good funds at Licensor's address specified herein, or at such other
address as Licensor shall from time to time designate in writing.
Notwithstanding any other provision of this Article V, Licensor shall be
entitled for reasons of administrative convenience or otherwise to defer the
date by which any fee or charge payable by Licensee hereunder may be due. No
such deferral shall be a waiver of any of Licensor's rights hereunder. If
payment of any Application Fee, Annual License Fee, Annual Advertising Fee,
Consumer Service Number Fee, Annual Administrative Fee or other fee or charge
under this License Agreement is overdue, Licensee shall pay Licensor, in
addition to the overdue amount, interest on such overdue amount from the date it
was payable until paid at the rate which is two (2) points above the prime rate
published by the Wall Street Journal on the date payment was due, or the maximum
rate permitted by applicable law, whichever is less. Entitlement to such
interest shall be in addition to any other remedies Licensor may have.
32
VI. MARKS
A. OWNERSHIP OF MARKS
Licensor is the owner of all right, title and interest in and to the
Marks (which shall include for the purposes of this Section VI. all of the
permits and contractual or other arrangements (including registrations of
trademarks, service marks and domain names) relating to ownership or control of
the Marks, the Consumer Service Number and the like). No sublicense by Licensee
pursuant to Sections III.G. or X.C. shall create any ownership interest in the
Marks in Licensee or any sublicensee thereof nor any right by Licensee to
sublicense use of the Marks in the future.
B. GENERAL USE
With respect to Licensee's use of the Marks pursuant to this License
Agreement, Licensee acknowledges and agrees to the following:
1. Licensee shall use only the Marks designated by Licensor and shall
use them only in the manner authorized and permitted by Licensor herein, and
only in accordance with the Graphic Standards Manual. Without limiting the
generality of the foregoing, Licensee shall comply with Licensor's guidelines
and directives (i) for use of certain Marks with specified Additional Products
and Additional Services, and (ii) concerning the use of the Marks or derivatives
thereof in, or as a part of, the domain name of any World Wide Web pages or the
names of any similar Internet locales or addresses owned by or on behalf of
Licensee.
2. Except to the extent permitted as Incidental Use, Licensee shall
use the Marks only in connection with providing Primary Services, Core Products,
Additional Services and Additional Products in the Licensed Territory, in
accordance with the Quality Standards and as otherwise set forth in this License
Agreement.
3. Licensee shall identify the Licensor as the registered owner of the
Marks in such ways as Licensor may direct, including but not limited to the
identification of Licensor as such on Licensee's invoices, order forms, receipts
and contracts.
4. Except as provided in Section IV.G. above and Section X.C. below,
Licensee shall have no right to sublicense the Marks to any other person or
entity, and Licensee shall have no right to allow its resellers, if any, to make
use of the Marks. Any use by a dealer, retailer or agent under Section IV.G. or
by an Affiliate under Section X.C. shall be consistent with Licensee's rights
and responsibilities hereunder with respect to the use of the Marks and in no
event, shall any such permitted use exceed or extend beyond Licensee's rights
hereunder to use the Marks. Licensee agrees to monitor and be responsible for
the use of the Marks by its agents, retailers and dealers and its Affiliates and
to promptly provide or cause to be provided to Licensor upon request, from time
to time, such reasonable information concerning the use of the Marks by such
dealers, retailers and agents and Affiliates to permit Licensor to ascertain
33
Licensee's compliance hereunder. From time to time upon the reasonable request
of Licensor, Licensee shall promptly supply Licensor with a list of dealers,
retailers, agents and Affiliates authorized to use the Marks and/or promptly
confirm whether any particular dealers, retailers, agents or Affiliates remain
authorized and in good standing with respect to use of the Marks.
5. Licensee's right to use the Marks is limited to the uses
specifically authorized under this License Agreement.
6. Licensee shall not use the Marks or any of their derivatives, or
any marks confusingly similar thereto, as part of Licensee's corporate or other
legal name. Licensee and any dealers, retailers or agents designated under
Section IV.G. or Affiliates designated under Section X.C. may file and maintain
trade name or fictitious name registrations in the jurisdictions within the
Licensed Territory where legally required or otherwise appropriate to reflect
the fact that Licensee is doing business as "Cellular One." If other licensees
desire to file and maintain such a trade name or fictitious name registration
pursuant to a license agreement with Licensor, Licensee shall consent or
otherwise cooperate with Licensor and such licensees in meeting the state or
local requirements to permit such trade or fictitious name registrations to
coexist. Licensee shall execute any documents deemed necessary or desirable by
Licensor or its counsel to assist Licensor in the protection or registration of
the Marks or to maintain or defend Licensor's title thereto, or their continued
validity and enforceability.
7. Licensee shall promptly notify Licensor of any suspected
infringement of, or challenge to the validity, registration, or Licensor's
ownership of the Marks, which occurs in the Licensed Territory, or elsewhere,
should Licensee become aware. Licensor agrees, at its sole cost and expense, to
institute or otherwise defend proceedings as may be appropriate to protect the
Marks, including, to the extent necessary, defense of such proceedings following
termination of this License Agreement. In connection with any such proceedings,
Licensee agrees to execute any and all documents and to do whatever reasonable
acts and things as may, in the opinion of counsel for Licensor, be necessary or
advisable to assist Licensor in carrying out the prosecution or defense, and
Licensor agrees to reimburse Licensee for all direct costs incurred by Licensee
in doing these acts and things, except that Licensee shall bear the salary costs
of its employees. Licensor shall have the sole right to institute, defend and
direct proceedings relating to the Marks and Licensee shall not file or
institute any proceedings relating to the Marks without the prior written
consent of Licensor. In the event that Licensee does file or institute any
proceedings relating to the Marks, Licensee shall promptly supply Licensor with
copies of any and all papers and materials relating to such proceedings,
together with such information relating thereto as Licensor may reasonably
request. Notwithstanding anything to the contrary in Section VI.B., and whether
or not Licensor undertakes the prosecution or defense of a legal proceeding
relating to one or more of the Marks, Licensor's liability for damages and
losses to Licensee relating to use of one or more of the Marks (including any
loss resulting from Licensor's loss of title or ownership of the Marks or the
rights thereto) shall be limited to the amount of the Application Fee plus the
Annual License Fee paid by Licensee under this License Agreement for the
market(s) in which such liability is determined, for the year during which such
liability is determined.
34
8. The Marks are valid and serve to identify the Primary Services, the
Core Products, the Additional Services and the Additional Products provided by
those who are authorized to operate under the Marks. Licensee shall not directly
or indirectly contest the validity, registration or Licensor's ownership of the
Marks, any of Their derivatives, any of the icons or other marks owned by
Licensor, and Licensee shall not directly or indirectly apply for or otherwise
seek to register as a trademark, service xxxx or design any xxxx or other
designation which incorporates, which is the same as or confusingly similar to,
or which may dilute Licensor's rights in and to, any of the Marks or their
derivatives, any of the icons or other marks owned by Licensor.
9. Licensee's use of the Marks, and the use thereof by its agents,
retailers, dealers and Affiliates, if any, pursuant to this License Agreement
does not give Licensee or any agent, retailer, dealer or Affiliate, any
ownership interest or other interest in or to the Marks, except the license
granted in this License Agreement. Any and all goodwill arising from use of the
Marks shall inure solely and exclusively to the benefit of Licensor, and upon
expiration or termination of this License Agreement and the license granted by
it, no monetary amount shall be assigned as attributable to any goodwill
associated with use of the Marks by Licensee or its agents, retailers, dealers
or Affiliates.
10. Licensor has and retains the following rights, among others:
(i) To use the Marks itself, in connection with local, regional
and national advertising and promotion, including conducting
activities designed to enhance the goodwill associated with the Marks,
and, subject to the provisions of Section I hereof, with directly or
indirectly selling products and services (including telecommunications
products and services) both within and outside the Licensed Territory;
(ii) To grant licenses for use of the Marks in addition to those
licenses already granted to existing licensees of the Marks;
(iii) To use the Marks in any manner reserved for Licensor
pursuant to Section I; and
(iv) To create derivatives of the Marks and exploit, promote and
license such derivatives.
11. In the event that any of the Marks or icons, including any
trademarks, service marks and design logos adopted after execution of this
License Agreement which become Marks, can no longer be used, Licensor reserves
the right to provide a substitute xxxx or design with reasonable notice to
Licensee.
35
C. INCIDENTAL USE
1. For the purposes of this License Agreement, the promotion, sale and
delivery of Primary Services, the Core Products, Additional Services and
Additional Products in accordance with this Section VI.C. shall be considered
"Incidental Use" of the Marks.
2. During the Term, and subject to the other provisions of this
License Agreement, Licensee shall be entitled to conduct its business of
providing Primary Services, Core Products, Additional Services and Additional
Products throughout the Licensed Territory, without the necessity of abandoning
or failing to serve any part of the Licensed Territory because such business
might become known to, or because Licensee might from time to time sell products
or services to, persons or businesses resident or located outside of the
Licensed Territory. Licensee shall not be prohibited by the terms of this
License Agreement from promoting Primary Services outside of the Licensed
Territory to the extent necessary to provide Primary Services in accordance with
the Quality Standards throughout the Licensed Territory. In addition, except
that Licensee shall not specifically direct its promotional activities to
potential customers outside of the Licensed Territory, Licensee shall be
entitled to utilize regional or other media in connection with promoting its
Primary Services, Core Products, Additional Services and Additional Products
within the Licensed Territory. Licensee shall not adopt.promotional pricing or
otherwise seek to distribute Primary Services, Core Products, Additional
Services or Additional Products outside of the Licensed Territory, but shall not
be precluded from doing business with persons or entities it knows to be
resident outside of the Licensed Territory.
3. This Section VI.C. does not entitle Licensee to utilize the Marks
for products or services other than Primary Services, Core Products, Additional
Services and Additional Products, nor does it allow use of the Marks by Licensee
outside of the Licensed Territory except strictly in accordance with Section
VI.C.2. above. Licensor shall have the sole right to restrict Licensee's
Incidental Use of the Marks at any time and in such manner as Licensor shall
determine necessary or appropriate to prevent such Incidental Use from
breaching, infringing upon, or otherwise conflicting with, the rights of any
other current or future licensee of the Xxxx(s). Licensee's Incidental Use of
the Marks may also be restricted under Section VI.D. below, notwithstanding this
Section VI.C., to avoid or mitigate Potential Customer Confusion (as
subsequently defined).
D. POTENTIAL CUSTOMER CONFUSION
1. Notwithstanding any other provision of this Section VI. to the
contrary, in the event that as a result of economic, demographic or
technological changes within or affecting the Licensed Territory from and after
the date of this License Agreement, Licensor reasonably determines that actual
or potential customers of another licensee of the Marks, or any of them, are or
are likely to consider Licensee to be, or to be affiliated with, such other
licensee of the Marks or not readily distinguishable therefrom (such
circumstances being referred to as "Potential Customer Confusion"), Licensor
shall be entitled to modify the provisions of this
36
License Agreement and any Exhibit hereto for the purpose of reducing the
circumstances giving rise to the Potential Customer Confusion.
2. In seeking to reduce Potential Customer Confusion, Licensor shall
consider requiring providers (including Licensee) of products or services which
are the source of Potential Customer Confusion to adopt tag lines or otherwise
differentiate such products or services before amending this License Agreement
in a manner that would require a material modification in the conduct of
Licensee's telecommunications business relating to the Marks.
3. Without limiting the generality of the foregoing, and without
limiting any other rights which Licensor may have hereunder with respect to
Additional Products or Additional Services, Licensor shall be entitled, with or
without the consent of Licensee, to reduce the size of the Licensed Territory
with regard to Additional Products or Additional Services or to delete or modify
the description of any Additional Product or Additional Service set forth on
Exhibit D hereto for the purpose of mitigating or eliminating Potential Customer
Confusion. Upon such reasonable written notice to Licensee as Licensor in its
discretion determines, but in no event to exceed sixty (60) days, regarding the
existence of Potential Customer Confusion resulting, in whole or in part, from
Licensee's promotional activities, Licensee shall modify such promotional
activities to the extent reasonably necessary to prevent or mitigate, to the
extent possible, the continuation of events or circumstances previously giving
rise to Potential Customer Confusion.
VII. CONFIDENTIAL INFORMATION
A. DEFINITION
Any and all information, knowledge, know-how, and techniques which
Licensor or Licensee designates as confidential shall be deemed "Confidential
Information" for purposes of this License Agreement, except:
1. Information which either party can demonstrate was known to it
prior to disclosure thereof by the other party; or
2. Information which, at or after the time of disclosure by one party
to the other, had become or later becomes a part of the public domain, through
publication or communication by others through no fault of the party receiving
the information.
B. PROHIBITIONS
Licensor and Licensee each agree that it will use its best efforts,
during the term of this License Agreement and for one year following expiration
or termination of this License Agreement, to prevent the communication or
divulgence, to any other person, partnership, association, corporation or
business enterprise of any Confidential Information which may be
37
communicated to it or of which it may be apprised pursuant to this License
Agreement. Licensor shall be deemed to have used its best efforts to prevent
such communication or divulgence if it has distributed guidelines to its
employees in an effort to maintain an information separation between Licensor
and the Partnership Partners and their affiliates, and, specifically, it has
instructed its employees not to divulge any Confidential Information, including
customer information, to the Partnership Partners or their affiliates, and shall
have obtained the executed confidentiality agreements referred to in Section
VII.C. from those persons designated in such Section. In circumstances where
Licensee is in direct competition with one of the Partnership Partners or their
affiliates in any one or more of the market(s) in the Licensed Territory,
Licensor will instruct its employees that no information regarding Licensee's
business of providing Primary Services, Core Products, Additional Products or
Additional Services in that market should be disclosed to that Partnership
Partner or its affiliates. The parties agree that statistical performance
information regarding licensees of the Marks which does not identify individual
markets may be reported to the Partnership Partners and their affiliates and
shall not be considered Confidential Information. Notwithstanding the foregoing,
either party to this License Agreement and the Partnership Partners and their
affiliates may disclose any Confidential Information which any such party may be
legally required to disclose to a government agency or in the context of
litigation or arbitration.
C. LICENSOR CONFIDENTIALITY AGREEMENTS
Licensor will execute, and will cause its employees, agents and
representatives, who are reasonably expected to have access to Confidential
Information of Licensee to execute, an appropriate confidentiality agreement,
which shall provide that any Confidential Information of Licensee made available
to Licensor, Licensor's employees, agents or representatives, pursuant to this
License Agreement, will be kept confidential by all such persons.
D. CONSEQUENCES OF BREACH
Licensor and Licensee each acknowledges that any failure to comply
with this Section VII will cause the other party irreparable injury, and each
party agrees to pay all court costs and reasonable attorneys' fees incurred by
the other party in obtaining specific performance of, or an injunction against
violation of, this Section VII.
VIII. ADVERTISING
Recognizing the value of advertising and the importance of the
standardization of advertising programs to the furtherance of the goodwill and
public image of the Marks, the parties agree as follows:
38
A. LICENSEE'S ADVERTISING
All advertising and promotion by Licensee in any manner or medium must
be conducted in a dignified manner and must conform to the written and graphic
guidelines specified by~Licensor from time to time, including the Graphic
Standards Manual. Licensee shall display or otherwise employ the Marks in the
manner prescribed by Licensor on all signs and all other advertising and
promotional materials used in connection with Licensee's business, to the extent
relating to Primary Services, Core Products, Additional Services and Additional
Products. If requested by Licensor, Licensee at its own expense shall promptly
provide to Licensor photocopies or other photographic, mechanical, magnetic or
other representations of all print advertisements and promotional materials,
radio/television advertising sequences, graphical interface presentations and
other media presentations using the Marks which Licensee has used at any time
during the six (6) months preceding Licensor's request.
B. MATERIALS PROVIDED BY LICENSOR
Licensor may provide from time to time, in its sole discretion,
advertising and promotional plans and materials, including without limitation,
newspaper mats, television and radio tapes, graphical interface files,
promotional brochures and sales aids. Licensee may use all or any of these
materials in its sole discretion
C. CELLULAR ONE PROMOTIONAL FUND, OTHER ADVERTISING FUNDS
Licensor has established, and Licensee agrees to participate in a fund
for national, local and regional advertising and promotional and other public
programs and activities (the "Cellular One Promotional Fund" or the "Fund") for
licensees of the Marks. Licensor shall have the right to determine, in
accordance with Section V.C. hereof the amount of contributions to be made by
licensee with respect thereto for any year or years during the Term hereof
including any renewal Term. Licensee agrees to make contributions to the
Cellular One Promotional Fund as required hereunder and under Section V.C.
hereof, and agrees that the Fund is to be maintained and administered by
Licensor or its designee as follows:
1. Licensor or its designee shall direct all advertising and/or
promotional programs with sole discretion over the concepts, materials, and
media used in such programs and the placement and allocation thereof. Licensee
agrees and acknowledges that the Cellular One Promotional Fund is intended to
maximize general public recognition, acceptance, and use of the Marks for the
benefit of all licensees of the Marks, and that Licensor or its designee are not
obligated, in administering the Fund, to undertake expenditures for Licensee
which are equivalent or proportionate to Licensee's contribution, or to ensure
that any particular licensee benefits directly or PRO RATA from expenditures by
the Fund.
2. The Cellular One Promotional Fund, all contributions thereto, and
any interest earnings thereon, shall be used for the purpose of meeting any and
all costs of administering, researching, directing, and preparing advertising
and/or promotional activities
39
including the cost of preparing and conducting television, radio, magazine,
World Wide Web, e-mail and newspaper advertising campaigns; direct mail and
outdoor billboard advertising; marketing surveys and other public relations
activities; use of advertising agencies to assist therein; promotional brochures
and other marketing materials for licensees of the Marks; and indirect costs,
including reasonable allocation of Licensor's administrative, personnel and
overhead expenses, associated with the implementation of advertising programs,
such as equipment costs and similar costs relating to special national or
regional programs or other similar programs contemplated by Section III.E. All
reasonable costs incurred by Licensor or charged to Licensor by third parties
for the production and dissemination of such advertising and promotional
materials may be charged to the Fund.
3. Licensee shall contribute to the Cellular One Promotional Fund in
accordance with Section V.C. All sums paid by licensees of the Marks to the Fund
shall be maintained in an account separate from the other monies of Licensor and
shall not be used to defray any of Licensor's administrative expenses, except
for such reasonable administrative costs and overhead as Licensor may incur in
activities reasonably related to the administration or direction of the Fund and
advertising programs for licensees of the Marks, and as further set forth in
Section VIII.C.2. Except as set forth in this Section VIII.C., the Fund and any
incidental earnings shall not otherwise inure to the benefit of Licensor.
Licensor or its designee shall maintain separate bookkeeping accounts for the
Fund.
4. It is anticipated that all Licensee contributions to, and
incidental interest earned by, the Cellular One Promotional Fund shall be
expended for advertising and/or promotional purposes during the taxable year
within which the contributions and earnings are received. If, however, excess
amounts retain in the Fund at the end of such taxable year, all expenditures in
the following taxable year(s) shall be made first out of accumulated interest
earnings from previous years, next out of interest earnings in the current year,
and finally from contributions.
5. The Cellular One Promotional Fund is not and shall not be an asset
of Licensor or its designee. A statement of the operations of the Fund as shown
on the books of the Fund shall be prepared annually by an independent certified
public accountant selected by Licensor and shall be made available to Licensee
upon written request.
6. Although the Fund is intended to be of perpetual duration, Licensor
maintains the right to terminate the Fund. The Fund shall not be terminated,
however, until all monies in the Fund have been expended for advertising and/or
promotional purposes or returned to contributors on the basis of their
respective contributions.
In addition, Licensor may establish and Licensee shall contribute to
one or more separate advertising funds for the purpose of promoting types or
groups of Primary Services, Core Products, Additional Products or Additional
Services, utilizing all or part of the fees collected pursuant to Section V.C.
hereof. Except as specifically provided by Licensor when establishing such fund,
or as may be permitted under this License Agreement, such additional funds shall
be
40
subject to provisions identical to those applicable to the Cellular One
Promotional Fund described herein.
D. PRICE DISCRETION
Licensee shall have the right to sell its products and offer services
at any price Licensee may determine, and shall in no way be bound by any price
which may be recommended or suggested by Licensor.
IX. INSURANCE
A. REQUIREMENT
Licensee shall promptly procure, and shall maintain in full force and
effect at all times during the Term of this License Agreement, at Licensee's
expense, an insurance policy or policies protecting Licensee, Licensor, and the
Partnership Partners, and their respective affiliates, agents, officers,
directors, shareholders, and employees, against any demand or claim with respect
to personal injury, death, or property damage, or any loss, liability, or
expense whatsoever arising or occurring upon or in connection with Licensee's
business of providing and goods or services utilizing or in connection with the
Marks. Licensor and the Partnership Partners, and their respective affiliates,
agents, officers, directors, shareholders, and employees, shall be named
additional insureds in each such policy.
B. MINIMUM COVERAGE
The policy or policies shall be written by an insurance company with
an Xxxxxx X. Best rating of A or A+, or such other insurance company as Licensor
may reasonably approve, and shall include, at a minimum, such coverages and
policy limits as may reasonably be specified by Licensor from time to time,
which coverages may include, without limitation, comprehensive general liability
insurance, including personal injury, as well as comprehensive automobile
liability coverage for both owned and nonowned vehicles, and property damage
liability coverage, naming Licensor and the Partnership Partners, and their
respective affiliates, agents, officers, directors, shareholders and employees,
as additional insureds in each such policy or policies. Until such time as
Licensor shall in good faith determine that economic or other circumstances
affecting the Cellular One license program require increased insurance coverage,
the following minimum insurance requirements shall be applicable.
1: General liability: $1,000,000 per occurrence or $2,000,000 in the
aggregate;
2. Personal liability: $1,000,000;
3. Property damage: $1,000,000;
41
4. Automobile liability: $1,000,000 per occurrence for owned and
operated vehicles;
5. Workers' compensation/Employers' liability: $500,000 policy limit;
6. Disease: $500,000; and
7. Accident: $500,000
C. CERTIFICATES OF INSURANCE
Within thirty (30) days after this License Agreement is executed, and
thereafter at least thirty (30) days prior to the expiration of any such policy,
Licensee shall deliver to Licensor Certificates of Insurance evidencing the
proper coverage with limits not less than those required hereunder. All
Certificates shall expressly provide that not less than thirty (30) days prior
written notice shall be given Licensor in the event of material alteration to,
or cancellation of, the coverages. evidenced by such Certificates.
X. TRANSFER OF INTEREST
A. TRANSFER BY LICENSOR
Licensor shall have the right to transfer or assign all or any part of
its rights or obligations herein to any person or legal entity. If Licensor's
assignee assumes all of the obligations of Licensor under this License Agreement
and sends written notice of the assignment so attesting, Licensee shall promptly
execute a general release of Licensor and the Partnership Partners, and any
affiliates thereof, from any claims against or liabilities of Licensor, the
Partnership Partners or such affiliates arising under this License Agreement.
B. TRANSFER AND PLEDGE BY LICENSEE
If Licensee desires in the Licensed Territory (i) to sell its Primary
Services business for one or more markets and assign its rights under this
License Agreement with respect to such market(s), (ii) to pledge or assign its
rights under this License Agreement to a financial institution or other party in
connection with a financing transaction involving Licensee, or (iii) enter into
a transaction resulting in a Change of Control of Licensee, Licensee shall
notify Licensor in writing and Licensee shall be entitled to transfer, assign,
or pledge its rights under this License Agreement, or effect the Change of
Control, as the case may be, provided:
1. Licensee shall not be in default under this License Agreement.
2. The transferee shall enter into a written assignment, in a form
satisfactory to Licensor, assuming and agreeing to comply with, at Licensor's
option, either this License
42
Agreement or Licensor's then current form or forms of license agreement relating
to the Marks, except that in the case of a pledge or collateral assignment to a
financial institution referred to in Section X.B.(ii), such pledge or collateral
assignment need only be made subject to all of the terms and conditions of this
License Agreement. In the case of a Change of Control; Licensee and the new
controlling entity shall enter into a written agreement, in a form satisfactory
to Licensor, agreeing that Licensee shall continue to be entitled to the rights
and subject to the obligations of a licensee hereunder.
3. Licensee shall remain liable for all of the obligations to Licensor
under this License Agreement prior to the effective date of transfer and shall
execute any and all instruments reasonably requested by Licensor to evidence
such liability. The transfer or Change of Control shall not affect any of the
terms or provisions of this License Agreement or the status of the market(s) in
the Licensed Territory pursuant hereto (including without limitation, a market's
default or probation status under this License Agreement), all of which shall be
or remain fully applicable to the transferee or Licensee, as the case may be.
4. Where Licensee provides Primary Services in more than one market
and the transfer or Change of Control involves market(s) comprising less than
all of the markets in the Licensed Territory, the transferee or Licensee, as the
case may be, shall, at Licensor's option, enter into Licensor's then current
form of license agreement for the market(s) being transferred or to which the
Change of Control relates; in such event, this License Agreement shall remain in
full force and effect with respect to Licensee's remaining market(s), if any,
following the transfer or Change of Control.
5. The transferee or new controlling entity, or Proposed transferee or
new controlling entity, as the case may be, shall provide Licensor with such
financial data, certificates of insurance, copies of Permits, and other
information as are required to be provided by Licensee hereunder in connection
with entering into this License Agreement, or otherwise, and such materials and
information shall be current and complete as of the effective date of such
transfer or Change of Control.
6. The transferee shall promptly pay Licensor any transfer fees or
charges then being charged generally by Licensor to transferees of licenses to
use the Marks. In the case of a Change of Control, Licensee shall pay Licensor
any similar fees then being charged generally by Licensor for such Changes of
Control with respect to licensees of the Marks.
Licensee shall be entitled to transfer, assign or pledge its rights under
this License Agreement, or enter into a transaction resulting in a Change of
Control of Licensee, with respect to a portion of a market in the Licensed
Territory, pursuant to the provisions of this Section X.B.
Licensee shall not be entitled to transfer, assign or pledge any of its
rights or obligations under this License Agreement, except by complying with the
provisions of this Section X.B.
43
relating thereto, nor shall Licensee permit a Change of Control to occur without
complying with the provisions of this Section X.B.
C. RIGHT TO ADD AFFILIATE AS PARTY
Subject to Section V.H., with the consent of Licensor, Licensee shall
be entitled to assign any or all of its rights under this License Agreement to
use the Marks in connection with the provision of Primary Services, Core
Products, Additional Services or Additional Products in the Licensed Territory,
or any part thereof, to an "Affiliate," which shall mean any business entity
Controlling, under the Control of, or under common Control with Licensee. No
assignment by Licensee of any rights pursuant to this Section X.C. shall relieve
Licensee of its obligations hereunder. In addition, Licensor's consent to such
assignment shall cease to be effective upon the occurrence of a Change of
Control with regard to Licensee or its assignee which results in Licensee or its
assignee no longer being Affiliates. Licensor shall be entitled, from time to
time and upon its reasonable request, to receive from Licensee and any assignee
thereof a certification that assignee continues to be entitled, under this
Section X.C. to utilize the Marks, together with the facts supporting such
entitlement. No, assignee of Licensee shall be entitled to any vote pursuant to
Section IV.E. or to any notices from Licensor hereunder. No conduct on the part
of Licensor with regard to any assignee of Licensee shall be deemed to cause
such assignee to become a licensee hereunder or to have any ownership interest
in this License Agreement. Licensee shall give Licensor prior written notice of
any Change of Control, as defined below, of Licensee or any assignee of
Licensee.
D. CHANGE OF CONTROL
For the purposes of this License Agreement, a "Change of Control" with
regard to any entity shall mean the disposition or acquisition, directly or
indirectly, of Control with regard to such entity. "Control" or "Controlling"
with regard to an entity shall mean the record or beneficial ownership, directly
or indirectly, by any person or entity, or group of persons or entities, of in
excess of a majority of the equity securities of the entity in question, or the
power to designate a majority of the members of the Board of Directors or other
governing body thereof or to otherwise determine the management and policies of
the entity in question.
XI. DEFAULT AND TERMINATION
A. TERMINATION BY LICENSEE
Licensee shall have the right to terminate this License Agreement
without cause at any time upon at least one hundred eighty (180) days advance
written notice to Licensor. Licensee shall remain fully responsible for any fees
and other obligations accruing to Licensor during such notice period.
44
B. TERMINATION BY LICENSOR - WITHOUT NOTICE
Licensee shall be deemed to be in default under this License
Agreement, and all rights granted herein shall automatically terminate without
notice to Licensee, if Licensee becomes insolvent or makes a general assignment
for the benefit of creditors; or if a petition in bankruptcy is filed by
Licensee or against Licensee and not actively opposed by Licensee; or if
Licensee is adjudicated as bankrupt or insolvent; or if a xxxx in equity or
other proceeding for the appointment of a receiver of Licensee or other
custodian for Licensee's business or assets is filed and consented to by
Licensee: or if a receiver or other permanent or temporary custodian of
Licensee's assets or property, or any part thereof, is appointed by any court of
competent jurisdiction; or if proceedings for a composition with creditors under
any state or federal law should be instituted by Licensee or against Licensee
and not actively opposed by Licensee; or if a final judgment remains unsatisfied
or of record for thirty (30) days or longer (unless supersedeas bond is filed);
or if Licensee is dissolved except where the Licensee is a limited partnership
and, promptly following dissolution, such limited partnership is reconstituted
with the same general partners: or if a suit to foreclose any lien or mortgage
against real or personal property used in the operation of Licensee's Primary
Services business is instituted against Licensee and not dismissed within thirty
(30) days or, if actively being opposed by Licensee, within one hundred eighty
(180) days; or if execution is levied against Licensee's Primary Services
business, or any of the property related thereto; or if any material real or
personal property of Licensee used in its Primary Services business shall be
sold after levy thereupon by any sheriff, marshal, or constable; or if Licensee
at any time ceases to operate or otherwise abandons its Primary Services
business or otherwise forfeits the right to do or transact business in any
market(s) in the Licensed Territory; or if Licensee loses its FCC license or FCC
construction permit or any other material Permit for one or more market(s) in
the Licensed Territory or otherwise forfeits the right to do or transact
business in one or more market(s), in which event Licensee's rights under this
License Agreement with respect to such market(s) shall automatically terminate
and this License Agreement shall continue with respect to the remaining
market(s) in the Licensed Territory for which Licensee continues to hold all
necessary FCC license(s) and Permits.
C. TERMINATION BY LICENSOR - UPON NOTICE
Upon the occurrence of any of the following events, Licensee shall be
deemed to be in default and Licensor may, at its option, terminate this License
Agreement and all rights granted hereunder without affording Licensee any
opportunity to cure the default. Said termination shall be effective immediately
upon receipt of notice by Licensee (and Licensee shall remain fully responsible
for any fees and other obligations accruing to Licensor until such termination
becomes effective):
1. If Licensee has been advised of its probation status pursuant to
Section XI.E. and Licensee does not make a good faith effort to formulate and
implement a plan during the term of probation, or, at the end of the term of
probation, Licensee fails to meet the 85% overall minimum customer satisfaction
rating (or the higher percentage established by
45
Licensor under Section IV.A.) required in the Licensed Territory as a whole by
the Quality Standards for Primary Services and Core Products;
2. If with regard to the Licensed Territory or any market constituting
a part thereof, Licensee fails in any customer satisfaction survey conducted
pursuant to Section III.C. to attain an overall customer satisfaction rating of
more than 70%, regardless of the terms of any probation;
3. If any principal stockholder or officer of Licensee is convicted of
a felony, a fraud, or any other crime or offense that Licensor believes is
reasonably likely to have an adverse effect on the Marks, the goodwill
associated therewith, or Licensor's interest therein;
4. If a threat or danger to public health or safety results from the
operation of the Licensee's Primary Services business or any of its businesses
relating to the delivery of any Primary Services, Core Products, Additional
Products or Additional Services;
5. If Licensee purports to assign or transfer any rights or
obligations under this License Agreement to any third party (including without
limitation, any reseller) or to effect a Change of Control, contrary to the
terms of Sections VI.B.4 or X.B. of this License Agreement;
6. If, contrary to the terms of Section VII. hereof, Licensee
discloses or divulges Confidential Information provided to Licensee by Licensor;
7. If Licensee knowingly submits any false reports of information to
Licensor or any entity conducting a customer satisfaction survey either during
the application process or subsequent to the execution of this License
Agreement; or
8. If Licensee directly or indirectly contests in any court or
proceeding the validity or registration of, or Licensor's ownership of, any
of the Marks or other rights licensed hereunder.
D. TERMINATION BY LICENSOR - AFTER NOTICE AND OPPORTUNITY TO CURE
Except as provided in Sections XI.B. and XI.C. of this License
Agreement, Licensee shall have thirty (30) days after its receipt from Licensor
of a written notice of termination within which to remedy any default hereunder
(or, if the default cannot reasonably be cured within such thirty (30) days, to
initiate within that time substantial and continuing action to cure the
default), and to provide evidence thereof to Licensor. If after such default is
not cured within that time (or, if appropriate, substantial and continuing
action to cure the default is not initiated within that time), or such longer
period as applicable law may require, this License Agreement shall terminate
without further notice to Licensee effective immediately upon expiration of the
thirty (30) day period or such longer period as applicable law may require (and
Licensee shall remain fully responsible for any fees and other obligations
accruing to
46
Licensor until such termination occurs). Licensee shall be in
default hereunder for any failure to comply with any of the requirements imposed
by this License Agreement or to carry out the terms of this License Agreement in
good faith. Such defaults shall include, without limitation, the occurrence of
any of the following events:
1. If Licensee fails to offer the Primary Services and the Core
Products of nationwide call delivery and nationwide roaming, or any of them,
under the specified Marks on a continuous basis and in a manner reasonably
appropriate to promote and further the goodwill of the Marks, throughout the
Licensed Territory in accordance with this License Agreement;
2. If Licensee fails, refuses or neglects promptly to pay when due any
monies, fees or charges due to Licensor or the Fund, or under this License
Agreement, or fails, refuses or neglects promptly to submit information as
required under this License Agreement, or makes any false statements in
connection therewith;
3. If Licensee fails to comply, in any material respect, with the
Graphic Standards Manual or the Quality Standards;
4. If Licensee directly or indirectly misuses or makes any
unauthorized use of the Marks or otherwise materially impairs the goodwill
associated therewith or Licensor's rights therein;
5. If Licensee directly or indirectly engages in any business or
markets any service or product under a name or xxxx which, in Licensor's
opinion, is confusingly similar to, or may have a tendency to dilute, the Marks;
6. If Licensee shall breach or fail to timely perform any of its
covenants or obligations under this License Agreement including, without
limitation, the covenants of Licensee relating to the Consumer Service Number
program and the Other 800 Programs;
7. If Licensee fails, refuses or neglects promptly to pay when due any
fees or charges or otherwise timely perform its obligations to the Long Distance
Carrier with regard to the Consumer Service Number;
8. If Licensee, by act or omission, permits a continued violation in
connection with the operation of its business of any Permit, law, ordinance,
rule or regulation of a governmental agency, in the absence of a good faith
dispute over its application or legality and without promptly resorting to an
appropriate administrative or judicial forum for relief therefrom; or
9. If any dealer, agent, retailer or Affiliate of Licensee misuses the
Marks or otherwise fails to comply with this License Agreement, and Licensee,
upon request by Licensor, does not promptly (i) cause such dealer, agent,
retailer or Affiliate to cease the misuse
47
and to otherwise fully comply with this License Agreement, or (ii) terminate its
business relationship with such dealer, agent, retailer or Affiliate.
E. PROBATION
In the event that a customer satisfaction survey, conducted pursuant
to Section III.C., reveals an overall minimum customer satisfaction rating less
than required pursuant to Section IV.A.2., Licensor shall advise Licensee of an
imposition of probation status for a stated period of time, typically one (1)
year for primary Services and Core Products. Promptly on receipt of this written
notice, Licensee agrees to formulate and implement a written plan to improve the
quality of Licensee's Primary Services and Core Products, so that a subsequent
customer satisfaction survey will indicate compliance with the provisions of
this License Agreement. Licensor shall be entitled to review Licensee's plan
upon reasonable request therefor. The guidelines contained in the Guide to
Quality Operations provided to Licensee by Licensor and the Quality Standards
set forth in Exhibit E are designed to assist Licensee in improving its customer
satisfaction rating. If Licensor determines, in its sole discretion, that
Licensee is not making a good faith effort to formulate and implement such a
plan, or after a reasonable probation period the goals of the plan are not
achieved, then Licensor may elect to extend the term of the probation or
terminate this License Agreement effective upon written notice to Licensee
pursuant to Section XI.C. Any extension of the Term of this License Agreement by
Licensor during any probationary period shall not waive Licensor's rights under
this Section XI.E. or under Section XI.C., and such probationary period, and any
agreements relating thereto, shall continue unaffected.
F. PARTIAL TERMINATION
In addition to any other rights Licensor may have under this
License Agreement with respect to the termination of Licensee's right to
utilize the Marks in connection with Additional Services or Additional
Products, or to amend Exhibit D to delete Additional Services or Additional
Products therefrom, Licensor shall have the rights set forth in this Section
XI.F. From time to time, Licensor may conduct customer satisfaction surveys
specifically relating to Additional Products or Additional Services. In
addition, surveys conducted by Licensor with regard to the Primary Services
may be designed to determine customer satisfaction levels with regard to
Licensee's Additional Products or Additional Services. In the event that any
such customer satisfaction survey reveals an overall minimum customer
satisfaction rating of less than 85% (or such higher percentage as may be
established by Licensor under Section IV.A.), but more than 70%, with regard
to one or more markets constituting a part of the Licensed Territory,
Licensor shall be entitled to impose a probation status with regard to the
Additional Product or Additional Service and the market or markets in
question. Licensor shall advise Licensee of the period of time, typically one
(1) year, of such probation. Promptly upon receipt of this written notice,
Licensee agrees to formulate and implement a written plan to improve the
quality of Licensee's Additional Product or Additional Service in question in
the market or markets in question, so that a subsequent customer satisfaction
survey will indicate compliance with the provisions of this License
Agreement. Licensor shall be entitled to review Licensee's
48
plan upon reasonable request therefor. The Guide to Quality Operations provided
to Licensee by Licensor and the Quality Standards set forth in Exhibit E hereto
are designed to assist Licensee in improving its customer satisfaction rating.
Additional customer satisfaction surveys will be commissioned in the market or
markets in question from time to time thereafter as Licensor deems appropriate,
and Licensee agrees to pay the reasonable direct costs of conducting such
additional customer satisfaction surveys. If Licensor determines, in its sole
discretion, that Licensee is not making a good faith effort to formulate and
implement such a plan, or after a reasonable probation period the goals of the
plan are not achieved, then Licensor may elect to extend the term of the
probation or terminate Licensee's right to utilIze the Marks in connection with
the Additional Products or Additional Services in question in the market or
markets in question or in the Licensed Territory as a whole. In the event of
such a termination, Exhibit D hereto shall be amended appropriately. In
addition, if a customer satisfaction survey shall reveal an overall customer
satisfaction rating of 70% or less with regard to any Additional Product or
Additional Service in any market or markets in the Licensed Territory, Licensor,
upon thirty (30) days prior written notice to Licensee, shall be entitled to
terminate Licensee's right to utilize the Marks in connection with such
Additional Services or Additional Products, or any of them, in the market or
markets in question or in the Licensed Territory as a whole, and Exhibit D
hereto shall be amended to delete such Additional Products or Additional
Services therefrom. Any extension of the Term of this License Agreement by
Licensor during any such probationary period shall not waive Licensor's rights
under this Section XI.F., and such probationary period, and any agreements
relating thereto, shall continue unaffected.
G. FORCE MAJEURE
Neither Licensor nor Licensee shall be liable or deemed to be in
default for a delay in or failure of performance that results from any of the
following causes beyond the reasonable control of such party: strikes, work
stoppages, shortages of equipment, supplies or energy, war, insurrection, or
acts of God or the public enemy. Any delay resulting from any such cause shall
extend performance accordingly or excuse performance, in whole or in part, as
may be reasonable; provided however, that (i) said causes shall not excuse
payment of any amount due or owed at the time of such occurrence or payment of
Annual License Fees, Annual Advertising Fees, Consumer Service Number Fees or
other amounts due thereafter, (ii) the party asserting any such cause shall
promptly commence and diligently pursue action to remedy its inability or
failure to perform hereunder, and (iii) in no event shall said causes extend or
excuse performance for more than one hundred twenty (120) days from the time of
performance set forth in this License Agreement. The party asserting the
existence of a force majeure condition under this Section XI.G. shall promptly
notify the other party in writing of the occurrence and nature of any such cause
and shall thereafter regularly inform the other party in writing of the progress
of actions to remedy the inability or failure to perform hereunder.
49
XII. OBLIGATIONS UPON TERMINATION OR EXPIRATION
Upon termination or expiration of this License Agreement with respect
to one or more of the market(s) in the Licensed Territory (the "Terminated
Market(s)"), all rights granted hereunder to Licensee with respect to each
Terminated Market shall forthwith terminate, and:
A. DEIDENTIFICATION
1. Licensee shall immediately cease to hold itself out as a present or
former licensee of Licensor with respect to the Terminated Market(s).
2. Licensee shall immediately cease to participate in the Consumer
Service Number program, any Other 800 Programs or any similar national call or
customer routing program utilizing the Marks.
3. Licensee shall immediately and permanently cease to use, in any
manner whatsoever, in the Terminated Market(s) any of the Marks and derivatives
thereof, and all other marks and distinctive forms, slogans, signs, icons,
symbols, monograms and devices associated with the Marks. Without limiting the
foregoing, Licensee shall cease to use all signs, advertising materials, World
Wide Web sites, displays, stationery, forms, and any other articles or clothing
which display or incorporate any of the Marks or any derivatives thereof.
4. Licensee shall take such action as may be necessary to cancel in
the Terminated Market(s) any trade name, fictitious name or equivalent
registration which contains any of the Marks or any other service xxxx or
trademark of Licensor, and Licensee shall furnish Licensor with proof of
compliance with this obligation within thirty (30) days after termination or
expiration of this License Agreement with respect to the Terminated Market(s).
5. Licensee agrees, in the event it continues to operate a business in
the Terminated Market(s), not to use any reproduction, counterfeit, copy, or
colorable imitation of the Marks or derivatives thereof, either in connection
with such other business or the promotion thereof, which is likely to cause
confusion, mistake, or deception, or which is likely to dilute Licensor's rights
in and to the Marks or derivatives thereof. Further, Licensee agrees not to
utilize any designation of origin or description or representation which falsely
suggests or represents an association or connection with Licensor or any of the
Marks or derivatives thereof in the Terminated Market(s).
6. Licensee shall immediately notify and cause its dealers, agents,
retailers and Affiliates that are using the Marks in the Terminated Market(s) to
immediately cease all use of the Marks and participation in the Consumer Service
Number program and any Other 800 Programs, and further cause its dealers,
agents, retailers and Affiliates to fully comply with all the obligations
applicable to Licensee under this Section XII. with respect to the Terminated
Market(s).
50
B. Payment of Monies Due
1. Licensee shall promptly pay all sums owing to Licensor, the
Cellular One Promotional Fund and any other advertising fund established
hereunder. If and when this License Agreement is terminated as a result of any
default of Licensee, such sums shall include all damages, costs and expenses,
including reasonable attorney's fees, incurred by Licensor as a result of the
default.
2. Licensee shall pay to Licensor all damages, costs and expenses,
including reasonable attorney s fees, incurred by Licensor subsequent to the
termination or expiration of this License Agreement in obtaining injunctive or
other relief for the enforcement of any provisions of this Section XII.
C. Return of Certain Confidential Documents
If this License Agreement has expired or been terminated with respect
to all of the market(s) in the Licensed Territory, then Licensor and Licensee
shall immediately deliver to the other party all documents which contain
Confidential Information of the other party as defined in Section VII. hereof,
including without limitation, the Guide to Quality Operations (including the 800
Number Supplement) and the Graphic Standards Manual.
XIII. INDEPENDENT STATUS AND INDEMNIFICATION
A. It is understood and agreed by the parties hereto that this License
Agreement does not create a fiduciary relationship between them; that Licensee
shall remain an independent business: and,that nothing in this License Agreement
is intended to constitute either party as an agent, legal representative
subsidiary, joint venturer, partner, employee or servant of the other for any
purpose whatsoever.
B. During the term of this License Agreement and any renewal hereof,
Licensee shall hold itself out to the public as an independent business using
the Marks. pursuant to a license from Licensor. Licensee agrees to take such
action as may be necessary to so notify the public.
C. It is understood and agreed that nothing in this License Agreement
authorizes Licensee to make any contract, agreement, warranty or
representation on Licensor's behalf, or to incur any debt or other obligation
in Licensor's name. Licensor shall in no event assume liability for, or be
deemed liable hereunder as a result of, any such action; nor shall Licensor
be liable by reason of any act or omission of Licensee, its dealers, agents,
retailers or Affiliates in the conduct of their businesses or for any claim
or judgment arising therefrom against Licensee or Licensor. Licensee shall
indemnify and hold Licensor, Licensor's employees, the Partnership Partners
and their affiliates, and their respective officers, directors, employees and
stockholders, harmless from and against any and all claims arising directly
or indirectly from, as a result of, or in connection with, the operation of
the businesses of Licensee, its dealers,
51
agents, retailers and Affiliates, as well as the costs, including attorney's
fees, of defending against them.
D. It is understood and agreed that Licensor does not establish or certify
manufacturing, technical or performance standards for telecommunications
equipment or customer premises equipment and Licensee will not represent
otherwise to third parties.
XIV. APPROVAL AND WAIVERS
A. Whenever this License Agreement requires the prior approval or consent
of Licensor, Licensee shall make a timely written request to Licensor therefor,
and such approval or consent shall be obtained in writing. Licensor will process
all such requests for approvals and consents in a reasonable and timely manner.
B. Licensor makes no warranties or guarantees upon which Licensee may rely,
and assumes no liability or obligation to Licensee, by providing any waiver,
approval, consent or suggestion to Licensee in connection with this License
Agreement, or by reason of any neglect, delay or denial of any request therefor.
C. No failure of Licensor or Licensee to exercise any power reserved to it
in this License Agreement, or to insist upon compliance by the other party with
any obligation or condition in this Agreement, and no custom or practice of the
parties at variance with the terms hereof, shall constitute a waiver of either
party's rights to demand exact compliance with any of the terms of this License
Agreement. Waiver by Licensor or Licensee of any particular default on the part
of the other party shall not affect or impair the non-defaulting party's right
with respect to any subsequent default of the same or of a different nature; nor
shall any delay, forbearance or omission by Licensor or Licensee to exercise any
power or right arising out of any breach or default by the other party of any of
the terms, provisions or covenants of this License Agreement affect or impair
such party's rights, nor shall such constitute a waiver by Licensor or Licensee,
as the case may be, of any rights hereunder or rights to declare any subsequent
breach or default.
D. Subsequent acceptance by Licensor of any payments due to it shall not be
deemed to be a waiver by Licensor of any preceding breach by Licensee of any
terms, covenants or conditions of this License Agreement.
XV. NOTICES
Any and all notices required or permitted under this License Agreement
shall be in writing and shall be personally delivered, delivered by reputable
overnight courier, proof of delivery requested, or by certified mail, postage
prepaid and return receipt requested, to the
respective parties at the following addresses unless and until a different
address has been designated by written notice to the other party:
Notices to Licensor: CELLULAR ONE GROUP
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: President
Copy (which shall not
constitute notice) to: Xxxxx & Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Cellular One Group
Notices to Licensee: At the address shown on the signature page hereof.
Any notice by overnight courier or certified mail shall be deemed to have
been given at the date and time such notice is accepted by the overnight courier
or deposited with the U.S. Postal Service, respectively. No failure to address
any notice hereunder to a particular individual shall render such notice
invalid.
XVII. ENTIRE AGREEMENT
This License Agreement, the documents referred to herein, and the
attachments hereto, if any, constitute the entire, full and complete License
Agreement between Licensor and Licensee concerning the subject matter hereof,
and supersede all prior agreements. Without limiting the foregoing, this License
Agreement shall be deemed to amend and restate in its entirety and to supersede,
for all purposes, any prior license agreement between the parties hereto which
contemplates or has as its primary purpose the grant of a license to use any of
the Marks. Except for those permitted to be made unilaterally by Licensor
hereunder, no amendment, change or variance from this License Agreement shall be
binding on either party unless mutually agreed to by the parties and executed by
their authorized officers or agents in writing.
XVI. SEVERABILITY AND CONSTRUCTION
A. Except as expressly provided to the contrary herein, each portion,
section, part, term and/or provision of this License Agreement shall be
considered severable; and if, for any reason, a portion, section, part, term
and/or provision herein is determined to be invalid and contrary to, or in
conflict with, any existing or future law or regulation by a court or agency
having valid jurisdiction, such shall not impair the operation of, or have any
other effect upon,
53
such other portions, sections, parts, terms and/or provisions of this License
Agreement as may remain otherwise intelligible; and the latter shall continue to
be given full force and effect and bind the parties hereof; and said invalid
portions, sections, parts, terms and/or provisions shall be deemed not to be a
part of this License Agreement.
B. Nothing in this License Agreement is intended, nor shall be deemed, to
confer any rights or remedies upon any person or legal entity other than
Licensor or Licensee, and their respective successors and assigns as permitted
by this License Agreement.
C. In the event a court in a final decision rules that any provision of
this License Agreement or portion thereof is unenforceable, Licensee agrees to
be bound by the maximum duty ruled enforceable by the court.
D. All captions in this License Agreement are intended solely for the
convenience of the parties, and none shall be deemed to affect the meaning or
construction of any provision hereof.
E. All references herein to the masculine, neuter or singular shall be
construed to include the masculine, feminine, neuter or plural, where
applicable.
F. This License Agreement may be executed in several counterparts, and each
copy so executed shall be deemed an original.
XVIII. APPLICABLE LAW
A. THIS LICENSE AGREEMENT TAKES EFFECT UPON ITS ACCEPTANCE AND EXECUTION BY
LICENSOR IN THE STATE OF TEXAS AND SHALL BE GOVERNED BY, AND INTERPRETED AND
CONSTRUED UNDER, THE LAWS THEREOF, WHICH LAWS SHALL PREVAIL IN THE EVENT OF ANY
CONFLICT OF LAW; PROVIDED, HOWEVER, THAT IF ANY OF THE PROVISIONS OF THIS
LICENSE AGREEMENT WOULD NOT BE ENFORCEABLE UNDER THE LAWS OF THE STATE OF TEXAS,
THEN SUCH PROVISIONS SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED UNDER,
THE LAWS OF THE STATE IN WHICH THE LICENSED TERRITORY IS LOCATED (IF THE
LICENSED TERRITORY CONTAINS PORTIONS OF MORE THAN XXX XXXXX XX XXX XXXXXXXX XX
XXXXXXXX, THEN THE APPLICABLE LAW SHALL BE THAT OF THE STATE IN WHICH THE
LARGEST PORTION OF THE LICENSED TERRITORY IS LOCATED).
B. No right or remedy conferred upon or reserved to Licensor or Licensee by
this License Agreement is intended to be, nor shall be deemed, exclusive of any
other right or remedy herein or by law or equity provided or permitted, but each
shall be cumulative of every other right or remedy.
54
C. Nothing herein contained shall bar Licensor's right to apply for
injunctive relief against threatened conduct that will cause it loss or damages,
under applicable equity rules, including the applicable rules for obtaining
restraining orders and preliminary injunctions.
XIX. ACKNOWLEDGMENTS
A. Licensee acknowledges that it is currently engaged in the
telecommunications business and that such business involves substantial
investment and risks and that its success is largely dependent upon the ability
of Licensee's management and technical personnel. Licensor expressly disclaims
the making of, and Licensee acknowledges that it has not received, any warranty
or guarantee, express or implied, as to the potential volume, profits, or
success resulting from the utilization of the Marks by Licensee in its
telecommunications business.
B. Licensee acknowledges that it received a copy of the complete Cellular
One License Agreement and the Exhibits thereto at least five (5) business days
prior to the date on which this License Agreement is signed by Licensee.
Licensee further acknowledges that it received the disclosure document required
by the Trade Regulation Rule of the Federal Trade Commission entitled
"Disclosure Requirements and Prohibitions Concerning Franchising and Business
Opportunity Ventures" at least ten (10) business days prior to the date on which
this License Agreement is signed by Licensee.
C. Licensee acknowledges that it has read and understood this License
Agreement and the attachments hereto, and that Licensor has accorded Licensee
ample time and opportunity to consult with advisors of Licensee's own choosing
about the potential benefits and risks of entering into this License Agreement
on the effective date set forth below.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
55
WITNESS WHERE OF, the parties hereto have duly executed this License Agreement
to be effective on the date shown below.
CELLULAR ONE GROUP
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: President
Effective Date: 1/1/97
Primary Contact in Ordinary Course of
Business:
Xxxxxxx X. Xxxxx, President
Cellular One Group
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, XX 000000
972/387-5225
972/000-0000 (Fax)
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
LICENSEE: SYGNET Communications, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------------------
Title: Vice President
----------------------------------------------
Date of Signature: 1/22/97
----------------------------------
PRIMARY CONTACT IN ORDINARY COURSE OF BUSINESS:
Xxx Xxxxx General Manager
Cellular One/Dicomm Cellular Telephone Co.
0000 Xxxx Xxxx.
Xxxxxxx, XX 00000
Phone: 716/000-0000 Fax: 716/000-0000
ADDRESS FOR NOTICE AND VOTING PURPOSES:
Xxxxxxx Xxxxxxxx VP & Chief Operating Officer
SYGNET Communications, Inc.
0000-X Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Phone: 330/000-0000 Fax: 330/000-0000
CONTACT FOR BILLING PURPOSES:
Xxxx Xxxxxxxx Controller
SYGNET Communications
0000-X Xxxxxxx Xx.
Xxxxxxxx, Xxxx 00000
Phone: 330/000-0000 Fax: 330/000-0000
57
EXHIBIT A
Cellular One License Agreement
The Marks currently designated by Licensor for use hereunder are as
follows:
Registration or
MARKS APPLICATION NUMBER
CELLULAR ONE (service xxxx) 1,839,076
1-800-CELL ONE(1) 75/105,170
CELLULAR ONE NETWORK(2) 74/495,960
LONG DISTANCE BY CELLULAR ONE(2) 75/017,997
PCS BY CELLULAR ONE(2) 75/010,430
PAGING BY CELLULAR ONE(2) 75/010,429
TELCOM BY CELLULAR ONE(2) 75/010,427
DISPATCH BY CELLULAR ONE(2) 75/010,428
DATA BY CELLULAR ONE(2) 75/079,447
VIDEO BY CELLULAR ONE(2) 75/079,445
INTERNET BY CELLULAR ONE(2) 75/088,362
LOCAL CALLING BY CELLULAR ONE(2) -
CELLULAR ONE (trademark)(2) 1,947,105
(1) Licensor may delete this Xxxx and/or Licensee's rights with respect to this
Xxxx xxx terminate under certain circumstances, as further described in
Section IV.J. of this License Agreement.
(2) Licensor may delete or modify any of these Marks or vary the Additional
Services or Additional Products in connection with which these Marks may be
used by Licensee, in accordance with the provisions of this License
Agreement or in furtherance of Licensor's rights hereunder.
OPTIONAL MARKS*
CLEAR ACROSS AMERICA 1,907,932
* Licensee may utilize the optional Marks in accordance with the terms and
provisions of this License Agreement and the Graphic Standards Manual, but
Licensor shall have the right in its sole discretion to terminate
Licensee's use of any of the optional Marks upon thirty (30) dads written
notice to Licensee.
EXHIBIT B
Cellular One License Agreement
Licensed Territory
Other
FCC Market
Market Name XXX/XXX Xxxxxx Xx. Xxxxxxxxxxx
Xxx Xxxx 00 XXX 000X0
Total Population: 486603
EXHIBIT C
Cellular One License Agreement
Primary Services
Associated
Xxxx (if any) Primary Services Description
Cellular One Cellular Telephone Services "A" Side Cellular Telephone Services
EXHIBIT D
CELLULAR ONE LICENSE AGREEMENT
ADDITIONAL SERVICES
Core Product Xxxx Product or Service Description
------------------- ------------ ------------------ -----------------------------------------
X Cellular One Nationwide Call The ability of customers to be reached on
Delivery their wireless phone anywhere in the
United States and its territories (including
Alaska, Hawaii, Puerto Rico and U.S.
Virgin Islands) by having the caller dial
their wireless phone number.
X Cellular One Nationwide The ability of customers to make calls in
Roaming other than "home markets" anywhere in
the United States and its territories
(including Alaska, Hawaii, Puerto Rico and
U.S. Virgin Islands) by dialing the
appropriate phone number.
Cellular One Nationwide Cellular NCCDN shall be a backbone network
Network Call Delivery which consists of hardware/software,
Network transmission links and routing switches or
("NCCDN") protocols, and possessing the physical and
permitting intangible properties and functionality
participating cellular necessary to permit Licensee to offer
customers to Cellular Telephone Services customers the
automatically (i) service codes, (ii) dialing patterns,
receive calls dialed (iii) feature codes, and (iv) recorded
to such customer's messages (the foregoing clauses (i) through
home cellular (iv) being hereafter collectively referred
telephone number to as "Dialing Standards") described in
when roaming the Guide to Quality Operations, within
the United States and its territories
(including Alaska, Hawaii, Puerto Rico and
U.S. Virgin Islands).
Exhibit D - Page 1
Cellular One Primary Services The Cellular One Xxxx xxx be used for
provided in one or more Additional Services if they
combination with are provided in conjunction with the
one or more of the Primary Services; otherwise, the other
Additional Services Marks in this Exhibit are to be used for
the specified Additional Services in
accordance with Licensor's graphic standards.
If the Primary Services are provided
in conjunction with one or more Additional
Services under the Cellular One Xxxx, Licensee
must, in accordance with Licensor's
graphic standards (i) use the Marks in this
Exhibit for the Additional Services in
question or (ii) use Licensor's designated
form of the descriptive term for the Primary
Services and Additional Services in question
(e.g., Cellular, Long Distance, PCS, Paging,
Telcom, Dispatch, Data, Video, Internet or
Local Calling) rather than the full Marks
shown in this Exhibit (e.g., Long Distance by
Cellular One, Paging by Cellular One, etc.).
Exhibit D - Page 2
Long Distance by Long Distance An intra-LATA or inter-LATA toll
Cellular One Service telecommunications service
that is primarily viewed as part of a
public switched telephone network
providing users in fixed (such as
residences and businesses) or mobile
locations with two way voice, data, text,
and image communications. Minimum
requirements for Long Distance Service
include:
- provisioning of telecommunications
service
- offering two-way voice, data and text
communications
- being used as part of a public switched
telephone network
- providing intra-LATA, inter-LATA and
international service
- providing users with the ability to
terminate calls nationally and
internationally
- allowing customers utilizing any or all
of the full spectrum of telecommunications
services such as Cellular, PCS, Paging,
Dispatch, Alternate Wireless Services and
Telcom, to subscribe to this service.
Exhibit D - Page 3
PCS by Personal A wireless telecommunications service that is
Cellular One communication interconnected to a public switched
services telephone network providing users with at
least intra-LATA and inter-LATA two-way
voice and data communications. Service is
provided through a mobile phone (car,
transportable, or portable) or through
wireless modems incorporated into devices
such as lap top computers and electronic
notebooks. Minimum requirements of PCS are:
- provisioning of wireless
telecommunications service
- offering two-way voice and data
communications
- interconnecting to a public telephone
network
- providing intra-LATA and inter-LATA
service
- supplying service through:
- mobile phones that are mobile (car),
transportable or portable, or
- wireless modems incorporated into
devices such as lap top computers and
electronic notebooks.
Exhibit D - Page 4
Paging by Paging A wireless telecommunications
Cellular One messaging service providing users
with at least one-way voice and/or data
communications such as voice or data
messaging or data transfer to a pager or a
device such as a lap top computer, or
mobile phone with a built in pager.
Minimum requirements of Paging are:
- provisioning of a wireless
telecommunications service
- offering at least one way voice and/or
data communications
- providing service through analog or
digital technology for paging devices that
either are stand-alone or part of a device
such as a lap top computer or a mobile
phone.
Telcom by Cellular A combination of Telecommunications products and services
One telecommunications that are part of or interconnected
products or primarily to a public switched telephone
services, including network providing users in fixed locations such
products such as as a residence and businesses with local,
handsets, modems intra-LATA and inter-LATA two-way voice,
and PBX- like data, text, and image communications. Minimum
devices and services requirements for Telcom include:
such as Cellular
Telephone Services, - providing service to users in fixed
Alternate Wireless locations such as residences and
Services, private businesses
network services,
or local calling - offering two-way voice, data and text
(exchange) communications
services
- interconnecting to a public switched
telephone network
- providing local, intra-LATA or
inter-LATA service.
Exhibit D- Page 5
Dispatch by Dispatch Services A wireless telecommunications
Cellular One messaging service providing users with
"push to talk" two-way voice dispatch and
data broadcast that is generally used in
the public safety, construction, and
transportation industries, and that can be
interconnected to a public telephone
network. Minimum requirements for Dispatch
include:
- provisioning of wireless analog
telecommunications service
- offering two-way voice and data
communications
- providing "push to talk" technology for
organizations and multiple vehicles or
locations
- interconnecting with a public telephone
network.
Data by Data Transmission Transmission of information in a numerical
Cellular One form that is in either a digital or analog
format which can be transmitted via local,
intra-LATA and inter-LATA facilities
through a wireless telecommunications
network that is interconnected to a public
switched telephone network and
subsequently processed.
Video by Cellular Video Delivery Providing full motion images and
One Services conversational audio transmission which
can be sent or received in synchronization
via wired and wireless facilities.
Internet by Internet Services A wired or wireless telecommunications
Cellular One access to a data base of articles,
information and entertainment through the
Internet/World Wide Web.
Exhibit D- Page 6
Local Local Calling An intra-LATA telecommunications service
Calling by (exchange) that is primarily viewed as part of a
Cellular One Services public switched telephone network
providing users in fixed (such as
residences and businesses) locations with
two-way voice, data, text, and image
communications. Minimum requirements for
local calling services include:
- provisioning of telecommunications
service
- offering two-way voice, data and text
communications
- being used as part of a public switched
telephone network
- providing intra-LATA service
- providing users with the ability to
terminate calls nationally and
internationally
- allowing customers utilizing any or all
of the full spectrum of telecommunications
services, such as Cellular, PCS, Paging
Dispatch, Alternate Wireless Services and
Telcom, to subscribe to this service.
ADDITIONAL PRODUCTS
CORE PRODUCT XXXX PRODUCT OR SERVICE DESCRIPTION
----------------- ---------------- ------------------------- -----------------------------------------------
Cellular One Wireless Cellular telephones, handsets, transceivers,
Communications pagers (remote data receptors), personal
Equipment digital assistants (wireless data devices
which can receive and send data messages),
modems and facsimile machines, and parts
and accessories therefor.
Exhibit D - Page 7
EXHIBIT E
Cellular One License Agreement
Quality Standards
QUALITY STANDARDS MEASUREMENT
----------------- ----------------
- Overall Minimum - 85% of surveyed respondents answered
Customer Licensor's commissioned satisfaction
Satisfaction survey as "very satisfied" or somewhat
Rating satisfied" with their Cellular One service
overall
- Reliability of - Majority of surveyed respondents answered
placing and Licensor's commissioned satisfaction
completing a call survey "As Expected" or "Better than
Expected" for the reliability of placing
and receiving a call in home calling area
("Home Market")
- Voice quality - Majority of surveyed respondents answered
Licensor's commissioned satisfaction
survey "As Expected" or "Better than
Expected" for the quality of voice or
sound during Cellular One calls in Home
Market
- System Busy - Majority of surveyed respondents answered
Signals Licensor's commissioned satisfaction
survey "As Expected" or "Better than
Expected" for the ability to place or
receive calls without a system busy signal
in Home Market
- Dropped Calls - Majority of surveyed respondents answered
Licensor's commissioned satisfaction
survey "As Expected" or "Better than
Expected" for the ability to continue
phone calls without being dropped because
of weak signal
- Quickness of - Majority of surveyed respondents answered
answering Licensor's commissioned satisfaction
customer call survey "As Expected" or "Better than
Expected" for the quickness of answering
the phone
- Ability to - Majority of surveyed respondents answered
adequately answer Licensor's commissioned satisfaction
customer's reason survey "As Expected" or "Better than
for calling Expected" for abilIty to adequately answer
reason for calling
- Accuracy of Xxxx - Majority of surveyed respondents answered
Licensor's commissioned satisfaction
survey "As Expected" or "Better than
Expected" for the accuracy of the xxxx
- Clarity or - Majority of surveyed respondents answered
Understandability Licensor's commissioned satisfaction
of Xxxx survey "As Expected" or "Better than
Expected" for the clarity or
understandability of the xxxx
- Data Quality - Accurately transmit or receive data at a
rate of at least 9,600 bps
Exhibit E - Page 1
- Seamless Network - Customers must be able to travel with
their wireless phones outside their Home
Market and make and receive calls without
interruption when they travel beyond their
Home Market
- Automatic Roaming - Customers must have the ability to make
calls in markets outside of their Home
Market in the same manner as is done in
their Home Markets without any special
dialing sequences or instructions
- 24 Hour Customer - Customer service must be able to be
Service accessed inside or outside of their Home
Market 24 hours a day, 7 days a week
- *611 Dialing From - Customers with problems must be able to
a Wireless Phone access customer service from their
wireless phone within and outside their
Home Market by dialing *611
- 1-800-CELL ONE - A 24 hour service which can be accessed by
prospects and customers for assistance
with telecommunications products and
services by any type of telephone
technology from local and remote sites
Exhibit E - Page 2
EXHIBIT F
CELLULAR ONE LICENSE AGREEMENT
SURVEY METHODOLOGY
The methodology currently being employed by Licensor and its designated
Survey Company will be a telephone survey conducted from random probability
samples selected by the Survey Company from listings supplied by Licensee of all
of Licensee's customers in each market in the Licensed Territory.
Customer listings shall be provided to the Survey Company in magnetic
tape or disk medium in such common format as may be reasonably specified by
Licensor. (If Licensee is unable to comply, a half-size, high income probability
sample will be ordered at Licensee's expense).
A random probability sample will be utilized, sufficient in number for
economic completion of the satisfaction survey. The size of the samples will be
at the discretion of Licensor and the Survey Company, but will typically be
between approximately 50 and 200 depending on the size of the market being
surveyed.
EXHIBIT G
CELLULAR ONE LICENSE AGREEMENT
SPECIAL RESELLER PROVISIONS
[To be agreed to between Licensor and Licensee when applicable]
