Contract
EXHIBIT
10.1
This
Agreement (“Agreement”), effective as of the date executed by the last to sign
of the parties (“Effective Date”), between SunRocket, Inc. (“Service Provider”
hereinafter referred to as “SP”), a Delaware corporation, located at 0000
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, and American Telecom Services,
Inc., a Delaware corporation (“ATS”) located at 0000 Xxxx Xxxx, Xxxx xx
Xxxxxxxx, XX 00000 memorializes the obligations of the parties in connection
with VoIP hardware (“Telephones” and/or “Telephone”) provided by ATS, associated
with the ATS System (“ATS System”) as described in Appendix A and future
versions of the Telephone (“New Telephones” and/or “New Telephone”) to be
reviewed and approved by SP from time to time as further outlined herein. Such
approval shall be subject to the certification process and requirements as
set
forth in Appendix F herein.
SP
provides Internet Phone services to consumers, including communications and
customer services (“Services”) to support customer accounts (“Customer Account”
or “Customer Accounts”). The Telephones and New Telephones shall be
preconfigured to support an SP Customer Account. The Telephones shall be
distributed to retail outlets for subsequent resale to consumers who then
activate new Customer Accounts in conjunction with such Telephones and/or New
Telephones (“End Users”) throughout the United States.
As
of the
Effective Date, all prior agreements between the parties, whether oral or
written, including the agreement dated June 7, 2005, shall
terminate.
1. |
ATS
Obligations.
|
a. |
Upon
execution of this Agreement, ATS will use commercially
reasonable
efforts to configure its Telephones and New Telephones to work with
the SP
Services. ATS will use commercially
reasonable
efforts to provide engineering and technical configuration support
to SP
as necessary to ensure its Telephones and New Telephones can support
SP
service features and quality standards. ATS will also ensure that
the
appropriate SP xxxx or marks (as determined by SP) are placed on
each of
the Telephones and New Telephones and any supporting equipment when
inventory considerations and design specifications permit, at ATS’s sole
discretion.
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b. |
ATS
further agrees to design the packaging and packaging inserts for
the
Telephones and New Telephones. ATS will ensure that the appropriate
SP
xxxx or marks (as determined by SP) will be placed on all packaging
and
packaging inserts. SP, with ATS’s cooperation and guidance, will provide
all information and design for service offering inserts and information
pertaining to the service offering for the packaging. ATS acknowledges
that any retail packaging or materials shall include any information
necessary to comply with FCC and FTC regulations as mutually agreed
upon
by the parties and provided for by ATS with respect to the Telephones
and
New Telephones and SP with respect to the Services. SP will have
the right
to review and approve the use of its brand, marks and colors and
the
representation of its service
plans.
|
c. |
ATS
will provide SP with all documentation and training materials associated
with its Telephones and New Telephones so that SP can provide first
level
customer support. ATS further agrees to provide second level support
and
troubleshooting assistance for SP technical support. The account
servicing
obligations of each party, including the hours during which each
party
must provide such support, are described in
Appendix D.
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d. |
ATS
will send to SP via FTP transfer data files on a periodic basis containing
a list of MAC IDs for Telephones and New Telephones to be shipped
to
retailers or to be designated for corporate use. Such MAC IDs in
the data
file will be associated with the retailer that they are being shipped
to
(or otherwise designated as corporate use accounts). SP will enter
these
MAC IDs into their database, making the Telephones and New Telephones
associated with those MAC IDs ready for activation by End Users,
associate
them with the designated retailer, and send an email to ATS acknowledging
that the information has been entered into their system and that
the
associated hardware may be activated within seven (7) business days
following the date that the file was
received.
|
e. |
ATS
will use commercially
reasonable
efforts to resolve all End User disputes regarding Telephones and
New
Telephones within a commercially reasonable amount of
time.
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2. |
SP
Obligations.
|
a. |
During
the term and subject to the terms and conditions contained herein,
SP
agrees to provide Telephone and New Telephone End Users with Services,
subject to the terms contained
herein.
|
b. |
SP
will use commercially
reasonable
efforts to resolve all End User disputes regarding Services within
a
commercially reasonable amount of
time.
|
c. |
Subject
to FCC, FTC and any other governmental requirements, SP agrees to
provide
ATS with End User information as described in Appendix C,
section 3. Such information shall constitute Confidential Information
under this Agreement. ATS shall use such information only for the
purposes
specified in Appendix C and only in full compliance with SP’s privacy
policy, the most recent copy of which is available at
xxx.xxxxxxxxx.xxx/xxxxxxx.
|
d. |
SP
shall make commercially reasonable efforts to ensure new End Users
contacting SP to activate a Telephone or a New Telephone are activated
on
such devices so ATS receives appropriate credit for such Customer
Account
activations.
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-2-
3. |
VoIP
Hardware
|
a. |
Telephones:
For purposes of this Agreement, the terms Telephone and Telephones
shall
refer individually and collectively to the following ATS
models: *
and * .
|
b. |
New
Telephones: For purposes of this Agreement, the terms New Telephone
and
New Telephones shall refer individually and collectively to up to
ten (10)
additional ATS devices, provided they comply with the requirements
of
Appendix A. ATS has initially designated the following models as New
Telephones: *
and * .
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c. |
No
Telephones or New Telephones may be sold by ATS or its retail/channel
partners unless ATS has provided SP with all requested and required
documentation necessary to support such Telephones or New Telephones
and
such Telephones and New Telephones have been certified by SP for
use on
SP’s network in the manner provided in section 3.d. Minimum
documentation requirements for customer support are outlined in
Appendix E.
|
d. |
ATS
shall give SP a minimum of *
days to test any Telephones and New Telephones to ensure such Telephones
and New Telephones interact properly with SP’s network, based on the
certification requirements and process outlined in Appendix F. Upon
submission, SP will, within *
days of receipt of a Telephone or New Telephone, provide ATS with
an
expected timeframe for testing within the *
day window. SP shall use commercially reasonable efforts to complete
testing of Telephones and New Telephones within this expected timeframe,
however, SP and ATS acknowledge that unforeseen circumstances, including,
but not limited to, bugs and other issues with Telephones and New
Telephones uncovered by SP may limit SP’s ability to complete testing and
certification within the expected timeframe outlined above. SP may
reject
any Telephones or New Telephones that do not meet SP’s requirements for
interaction with SP’s network and ask that ATS resubmit such Telephones
and New Telephones for approval once identified issues have been
remedied.
|
e. |
If
SP determines that End Users using any Telephone and/or New Telephone
are
(i) churning at rates *
percent ( * %)
or more than churn rates of SP subscribers not using such Telephone
and/or
New Telephone (churn rate comparisons of End Users using any Telephone
and/or New Telephone shall be based on a comparison to churn rates
of SP
subscribers not using Telephones or New Telephones in a comparable
stage
of tenure); and/or (ii) driving SP customer support trouble tickets
at rates *
percent ( * %)
or more of customer support trouble ticket rates of SP subscribers
not
using Telephones or New Telephones, SP may, in its sole discretion,
require ATS to cure the identified problem. If, after *
days from the point ATS is asked to cure such problem (the “Cure Period”),
during which time ATS shall not be permitted to distribute any additional
such Telephone or
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____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-3-
New
Telephone to Strategic Accounts or Non-Strategic Accounts (as defined
below), ATS is unable to remedy the issues causing such churn or
customer
care issues, ATS will immediately cease production and recall, at
its sole
cost and expense, all such Telephones and/or New Telephones from
retailers
and cease further sales of such Telephones and/or New Telephones
to
prospective and existing End Users until issues causing such churn
or
customer care issues have been addressed to SP’s satisfaction. SP may
agree, in its sole discretion, to extend the Cure Period upon written
notice to ATS.
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4. |
Reports.
SP shall provide to ATS the reports described in Appendix C,
section 3 at the frequencies provided therein. In addition, from time
to time, ATS may identify additional reports to be generated by SP
and
delivered to ATS on an ad hoc or periodic basis. SP will use commercially
reasonable efforts to produce such additional reports requested by
ATS.
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5. |
Deactivation.
SP reserves the right to terminate Services to any Customer Account
if it
determines, in its sole discretion, that End Users of such Customer
Accounts are actually or allegedly engaged in activities that are
illegal,
fraudulent or wrongful or which may be harmful to SP in any way.
ATS shall
receive a *
report of all such deactivated Customer Accounts and SP shall make
commercially reasonable efforts to provide reasons for such deactivations.
SP may also terminate End Users for non-payment or if they are violating
the terms of SP’s “Terms of Service” as set forth on the XxxXxxxxx.xxx
website and as may change from time to
time.
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6. |
Marketing
and Distribution. ATS will use its commercially
reasonable
efforts to promote and market the Services in conjunction with the
ATS
System under this Agreement. ATS’s distribution of the Telephones and New
Telephones in conjunction with the Services shall be limited initially
to
the Strategic Accounts identified in Section 9 below, except as
further outlined below. Distribution of Telephones and New Telephones
through any other retailer or channel (a “Non-Strategic Account”) may
occur only if approved in writing in advance by SP, which approval
is in
SP’s sole discretion. ATS
and SP agree that * ,
* ,
*
and any accounts where ATS has already shipped products, to be limited
to
* ,
* ,
*
and * ,
shall be considered approved Non-Strategic Accounts under this Agreement.
Nothing herein shall limit ATS’
right to promote, market and distribute any hardware or device that
is not
bundled with the Services provided by SP, nor SP’s right to promote and
distribute other hardware or Services not bundled with the ATS System.
ATS
shall be solely responsible for the development of all promotional
and
marketing materials, inserts and advertising materials (“Materials”)
except as set forth in section 1 (b) above and SP shall have the
right to approve in writing in advance the representation of the
SP brand,
logos, marks, service plans and any marketing positioning related
to the
SP Services on all such Materials.
SP
will make commercially reasonable efforts to issue approval or rejection
of such Materials within five (5) business days. Should SP require
certain
disclosures required by Regulatory Authorities to be included with
the
Telephones and/or New Telephones in the packaging, SP agrees to provide
ATS with such information in a
timeframe
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____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-4-
sufficient
to permit ATS to include the disclosures with the Telephones and/or
New
Telephones.
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7. |
PAYMENT
METHODS FOR SUBSCRIBERS.
SP agrees to accept payment via credit card and debit card. More
payment
methodologies such as ACH and Pay Pal may be added in the future,
but may
require an additional fee, paid by the End User, for the use of Services
(any such fees shall not be due any Commissions as defined in
section 10 below).
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8. |
MARKETING
CO-OP PAYMENTS.
SP agrees to pay *
per Customer Account activated on Telephones through any Non-Strategic
Account (as defined in Section 6
above), as applicable. Such payments will be payable on all such
Customer
Accounts activated through Non-Strategic Accounts that are active
thirty
(30) days post initial Customer Account activation. SP agrees to
pay
*
per Customer Account activated on New Telephones through any Non-Strategic
Account (as defined in Section 6
above), as applicable. Such payments will be payable on all such
Customer
Accounts activated through Non-Strategic Accounts that are active
sixty
(60) days post initial Customer Account activation. Such payments
will be
allocated by ATS for the promotion and marketing of Services, such
that
the creative design of such promotions shall conform with
section 1(b) and section 19 herein. On
a regular and timely basis, ATS will provide SP in advance with a
summary
plan for spending allocations and purposes, plus regular performance
reports as specified in Appendix C.3 and SP shall have the right to
audit such spending and confirm matching payment by ATS and
confirm that such funds were used solely for the purpose of marketing
the
combination of the ATS System and SP’s Service.
At ATS’
sole discretion, ATS may allocate
up
to *
of
the Agent Fees as set forth in section 10 below as an additional
Marketing Co-op
Payment. All payments to ATS shall be made to ATS via wire transfer
by the
25th
day of each month for the prior month’s activity, provided that no such
payment shall be made for a sum less than $10,000, in which case
the
amount shall be accrued in an account earmarked for ATS and paid
with the
next payment due to ATS.
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9. |
KEY
CITY FUNDS.
ATS hereby designates * and
*
as
its * allowed
“Strategic Accounts” under this Agreement, for which “Key City Funds”
would apply. Upon acceptable notification of the shipment of Telephones
and New Telephones and related equipment to and their arrival at
a
Strategic Account, SP and ATS agree to each commit *
to
service the initial Strategic Accounts as “Key City Funds” to be allocated
by ATS. SR shall have the right to audit spending on Key City Funds
and
confirm matching payment by ATS and confirm that such funds were
used
solely for the purpose of marketing the combination of the ATS System
and
SP’s Service. All payments to ATS shall be made to ATS via wire transfer
by the 25th
day of each month following the submission of allocation information
or a
xxxx from ATS to SP for the prior month’s
activity.
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10. |
SERVICE
COMMISSIONS. SP shall be responsible for maintaining all billing,
collection and transaction records with respect to an End User’s use of
the Services in conjunction with Telephones or New Telephones. SP
shall
pay a percentage of Net
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________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-5-
Revenue
(“Commissions”) to ATS for each End User who purchases a Telephone or New
Telephone through ATS, a Strategic Account or a Non-Strategic
Account and
newly activates a Customer Account in conjunction with such purchase
as
outlined below. The term “Net Revenue” means gross revenues collected less
any service credits, taxes and regulatory mandated fees incurred
by
SP.
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End
Users Of Telephones:
For the
first *
in
monthly Net Revenue per End User using a Telephone, SP agrees to pay ATS
* percent
( * %)
of the
Net Revenue for any Customer Account activated. For monthly Net Revenue per
End
User using a Telephone exceeding * ,
SP
agrees to pay ATS *
percent
( * %)
of the
Net Revenue in excess of * .
End
Users of New Telephones:
Except
for End Users on SP’s limited monthly plan (currently priced at $9.95), SP
agrees to pay ATS: (i) *
percent
( * %)
of the
Net Base Plan Revenue (as defined below) for any End User using a New Telephone
for the first twelve (12) months following activation; plus
(ii) *
percent
( * %)
of the
Net Base Plan Revenue for any End User using a New Telephone during the second
twelve (12) months following activation; plus (iii) *
percent
( * %)
of the
Net Base Plan Revenue for any End User using a New Telephone during the third
twelve (12) months following activation. For purposes of calculating Commissions
payable on End Users of New Telephones, “Net Base Plan Revenue” shall mean gross
revenue collected on such End User’s base telephony service plan, less any
service credits related to such End User’s base telephony plan, taxes and
regulatory mandated fees associated with such base telephony service plan.
“Net
Base Plan Revenue” shall not include revenue from any additional services sold
on top of such End User’s base telephony service plan.
All
payments to ATS shall be made via wire transfer by the 25th
day of
each month for the prior month’s activity, provided that no such payment shall
be made for a sum less than $10,000, in which case the amount shall be accrued
in an account earmarked for ATS and paid with the next payment due to ATS.
Upon
reaching minimum monthly volume levels, each payment shall be accompanied by
a
detailed report that includes a month-to-date activity summary for the covered
period, listed by Customer Account as formatted in Appendix C.
Commissions
on End Users who activate monthly plans shall be payable on monthly Net Revenue
or Net Base Plan Revenue as received by SP. For End Users of the Telephones
and/or New Telephones who sign up for a SP prepaid plan (i.e. any SP plan where
payment for a period in excess of a month is made up-front), applicable gross
revenue for purposes of calculating Net Revenue/Net Base Plan Revenue and
associated Commissions due in a given month of the term of such prepayment
shall
be equal to the prepaid amount spread evenly over the number of months to which
such prepayment applies, assuming such End User
________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-6-
still
has
an active Customer Account with SP. If such End User no longer has an active
Customer Account with SP, no further Commissions shall be due to
ATS.
For
example, if an End User of a Telephone signs up for a $199 prepaid annual plan,
gross service revenue used for calculating Net Revenue and associated
Commissions payable on such End User for a particular month shall be equal
to
$16.58, which equals $199 divided by 12. If, however, such End User no longer
has a Customer Account, no Commission payment shall be due to ATS on the
refunded amount.
11. |
AGENT
FEES.
SP agrees to pay ATS an Agent Fee (“Agent Fee”) for each activated
Customer Account generated by ATS that remains active for a period
of at
least *
days according to the table as set forth in Appendix B. All
payments to ATS shall be made to ATS via wire transfer by the
25th
day of each month for the prior month’s activity, provided that no such
payment shall be made for a sum less than $10,000, in which case
the
amount shall be accrued in an account earmarked for ATS and paid
with the
next payment due to ATS. Each
payment shall be accompanied by a detailed report that includes a
month-to-date activity summary for the covered period, listed by
Customer
Account.
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12. |
RATES
AND SERVICE PLANS.
SP agrees to offer End Users the same Services plans it offers generally
to its prospective subscribers, excluding limited-time special promotions.
If ATS would like to create a special promotion to offer End Users,
it
will (i) obtain written approval from SP prior to offering such
special promotion and (ii) fully fund the cost of such promotion (for
example, if ATS were to offer prospective End Users a special promotion
of
three (3) free months of SP service when signing up for the $24.95
monthly
plan, it would pay SunRocket $24.95 per month less applicable commissions
during which SunRocket is not able to collect such revenue from such
End
Users due to the special promotion; similarly, if ATS were to offer
End
Users a promotion of three (3) free months of SP service when signing
up
for the $199 annual plan, it would pay SP $16.58 per month less applicable
commissions of the promotion). ATS payments to SP for the above
promotional activities may be netted against SP Agent Fees, Commissions
and any other monies payable by SP to ATS, assuming such monies in
the
given month are sufficient to offset ATS’ promotional activities in the
month.
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13. |
REBATES.
SP agrees to pay ATS *
percent ( * %)
of the redemption value of any rebates offered on phone master base
station units and/or combination package containing the master base
station unit and any number of expansion units for Telephones and
New
Telephones up to a maximum advertised rebate of * .
SP agrees to pay ATS *
percent ( * %)
of the redemption value of any rebates offered on phone expansion
units
for Telephones up to a maximum advertised rebate of *
(“Rebate”). SP shall not bear the cost of any rebates associated with
phone expansion units for New Telephones. ATS will invoice SP for
the
Rebate deposit prior to SP making any Rebate redemption payments.
All
payments to ATS shall be made to ATS via wire transfer on a bi-weekly
basis, based on documented
redemption.
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________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-7-
14. |
RECORDS.
Each party hereto shall maintain reasonably complete, clear and accurate
records of all information required to determine the amounts of any
payments or transactions under the Agreement. Each party hereto,
upon
giving thirty (30) days prior written notice to the other party hereto,
and no more than once during any twelve (12) month period, may conduct,
at
reasonable times during regular business hours and subject to the
Confidentiality Obligations of Section 21, an inspection and audit of
the portions of such books and records of the other party as is necessary
to verify that such payments, including the amounts thereof, have
been
made in accordance with the terms
hereof.
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15. |
TERM.
This Agreement shall continue from the Effective Date until December
31,
2008 (the “Term”).
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16. |
TERMINATION.
|
a. |
This
Agreement may be terminated prior to its expiration upon the occurrence
of
any of the following: (a) by the non-breaching party, if the other
party materially breaches this Agreement which breach is not cured
within
thirty (30) days of written notice thereof to the breaching party;
(b) by SP or ATS, upon a determination by any governmental authority
with jurisdiction over the parties that the provision of the Telephones,
New Telephones and/or Services under this Agreement in the jurisdictions
in which the Telephones and/or New Telephones are being distributed
is
contrary to existing laws, rules or regulations; the party electing
to
terminate shall provide written notice to the other party setting
forth in
reasonable detail the factual basis for such termination and the
parties
agree in good faith to attempt to create a solution or workaround,
or
modify the Services to eliminate the requirement creating the basis
for
such termination in a manner mutually agreeable for a period of no
less
than ten (10) business days after the receipt of such notice and
if such
agreement is reached or the factual basis for such termination is
otherwise resolved, then the Agreement shall not be terminated. Upon
termination of this Agreement for any reason, ATS shall immediately
cease
production of the Telephones and New Telephones intended to be used
with
Services provided by SP. Upon termination of this Agreement other
than for
breach by ATS or legal or governmental requirement, should ATS decide,
in
its sole discretion, to have SP continue to activate Customer Accounts
associated with Telephones or New Telephones remaining in inventory,
ATS
shall provide SP with a final accounting setting forth the number
of units
in retail inventory (“Inventory Units”). SP will continue to activate
Customer Accounts for End Users who purchase such Inventory Units
for an
additional period of up to six (6) months and ATS shall be entitled
to all
associated compensation (including, but not limited to Commissions,
Agent
Fees, Marketing Co-Op payments and SP contributions to rebates on
Telephones, New Telephones and their expansion units) during that
period;
after this six (6) month period, SP will continue to activate Inventory
Units, however, no further compensation (including, but not limited
to
Commissions, Agent Fees, Marketing Co-Op payments and SP contributions
to
rebates on Telephones,
|
-8-
New
Telephones and their expansion units) would be due to ATS for such
activations. Should ATS decide, in its sole discretion, to have SP
discontinue activation of Customer Accounts associated with Inventory
Units, then ATS shall, at its sole cost and expense, immediately
recall
all Inventory Units as of the date of said election and shall agree
to
indemnify and hold SP harmless as set forth
below.
|
b. |
SP
may terminate this Agreement at any time after March 31, 2008 if
ATS has
not generated *
active End Users as of March 31, 2008. Active End Users equals total
Customer Account activations generated by ATS less any churn associated
with such Customer Accounts.
|
c. |
Following
expiration of the Initial Term or any extension or renewal thereof
or
termination (other than as provided in this section 16) of this
Agreement, SP shall continue to pay applicable Commissions on End
Users of
Telephones and/or New Telephones for a period of twelve (12) additional
months. For End Users of Telephones and/or New Telephones who activated
their Services in the twelve (12) months preceding the date of termination
of this Agreement (other than for breach), SP shall continue to pay
applicable Commissions for an additional twelve (12)
months.
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17. |
OWNERSHIP
OF INTELLECTUAL PROPERTY RIGHTS.
SP shall be the sole and exclusive owner of all right, title and
interest
in and to all patents, copyrights, trademarks, trade secrets or other
proprietary rights (“Intellectual Property Rights”) it owns. ATS
acknowledges that the SP Services and system constitute valuable
trade
secrets of SP and constitute Confidential Information under this
Agreement. ATS shall be the sole and exclusive owner of all right,
title
and interest (including, without limitation, all Intellectual Property
Rights) in and to the ATS System. SP acknowledges that the ATS System
constitutes valuable trade secrets of ATS and Confidential Information
under this Agreement. Nothing in this Agreement shall be deemed to
grant
to one party, by implication, estoppel or otherwise, license rights,
ownership rights or any other Intellectual Property Rights in any
materials owned by the other Party or any affiliate of the other
Party.
Neither Party shall attempt to register the Intellectual Property
Rights
of the other Party, or cause any claim, lien or encumbrance to attach
to
any Intellectual Property Rights of the other Party nor decompile
or
reverse engineer any proprietary of the other Party. To the extent
that
ATS acquires any patent or other Intellectual Property Rights related
to
this Agreement, ATS shall grant to SP a royalty-free, nonexclusive,
nontransferable right and license under any such patent or resulting
patent for the term of the
Agreement.
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18. |
INSURANCE.
ATS and SP each agree to maintain levels of general commercial liability
insurance coverage each deems appropriate during the
Term.
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19. |
USE
OF MARKS. Any and all trademarks and trade names that SP uses are and
shall remain the exclusive property of SP. ATS has no rights therein
and
shall not reproduce or use any corporate names, trademarks, service
marks,
trade names or logos of SP (collectively “Marks”) without SP’s express
prior written consent. SP
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________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-9-
hereby
grants ATS a limited, royalty-free license to use SP’s name and logo for
the purpose of marketing the Products and Services during the Term
of this
Agreement, on all inserts, advertising, packaging, product and point
of
purchase, subject to the requirement of SP’s prior written approval as
specified above.
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20. |
REPRESENTATIONS
& WARRANTIES. Each party represents and warrants that: (a) it
is duly organized, validly existing and in good standing under the
laws of
the jurisdiction in which it is organized; (b) it has all necessary
power and authority to enter into this Agreement and to perform all
its
obligations hereunder; (c) neither the execution, delivery, or
performance of this Agreement will (i) result in the breach of, or
constitute a default under, the terms of any material contract to
which it
is a party or by which it is bound; (ii) violate its charter or
by-laws; or (iii) require the consent or approval of any third party;
and (d) it will perform its obligations hereunder in compliance with
all applicable laws, rules and regulations. ATS further represents
and
warrants that the Telephones and the New Telephones do not infringe
upon
the Intellectual Property Rights of any third party, whether on a
standalone basis or used in conjunction with the Services and that
it has
not received any notice or communication from any third party to
such
effect. EXCEPT FOR WARRANTIES EXPRESSLY MADE IN THIS AGREEMENT, EACH
OF SP
AND ATS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
TO ATS
OR SP (AS APPLICABLE), OR TO ANY OTHER PERSON, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES REGARDING THE MERCHANTABILITY, SUITABILITY,
ORIGINALITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT
OR
OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN
THE
PARTIES OR CUSTOM OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM
THE
USE OF ANY SOFTWARE, SERVICES, HARDWARE OR OTHER MATERIALS PROVIDED
UNDER
THIS AGREEMENT.
|
21. |
INDEMNIFICATION.
|
21.1 |
Indemnity
By ATS.
|
Subject
to the limitations set forth elsewhere in this Agreement including, but not
limited to the limitations set forth in Section 24, ATS, at its own
expense, shall defend, indemnify and hold harmless SP, its affiliates,and their
respective and current and former directors, officers and employees from and
against any claims or demands by third parties (including, but not limited
to,
reasonable attorneys’ fees and other costs and expenses of litigation), or any
other liabilities, losses, damages, judgments, or obligation of any kind or
nature, or expenses related thereto, arising out of (i) ATS’s breach of the
terms of this Agreement (including, but not limited to, a breach of any
representation or warranty set forth in Section 20); (ii) ATS’s
marketing or facilitation of the Services or provision of the Telephones, the
New Telephones or the ATS System, including, without limitation, claims of
fraud, misrepresentation or theft arising therefrom; (iii) any misconduct,
act or omission on ATS’s part, whether negligent or intentional; (iv) ATS’s
misuse or unauthorized use of the Marks; (v) any claim by a third
-10-
party
that the Telephones, New Telephones, or ATS System, or any portion or
combination thereof contemplated under this Agreement, infringes any patent,
copyright, trademark, trade secret, or other proprietary right of a third party;
and (vi) ATS’s violation of FCC, trademark, copyright telemarketing or
privacy laws.
21.2 |
Indemnity
by SP.
|
Subject
to the limitations set forth elsewhere in this Agreement including, but not
limited to the limitations set forth in Section 24, SP, at its own expense,
shall defend, indemnify and hold harmless ATS, its affiliates, and their
respective current and former directors, officers and employees from and against
any claims or demands by third parties (including, but not limited to,
reasonable attorneys’ fees and other costs and expenses of litigation), or any
other liabilities, losses, damages, judgments, or obligation of any kind or
nature, or expenses related thereto, arising out of (i) SP’s breach of the
terms of this Agreement (including, but not limited to, a breach of any
representation or warranty set forth in Section 20); (ii) SP’s
marketing or facilitation of the Services or provision of the Telephones, the
New Telephones or the ATS System, including, without limitation, claims of
fraud, misrepresentation or theft arising therefrom; (iii) any misconduct,
act or omission on SP’s part, whether negligent or intentional; (iv) SP’s
misuse or unauthorized use of the Marks; (v) any claim by a third party
that the Services contemplated under this Agreement, infringes any patent,
copyright, trademark, trade secret, or other proprietary right of a third party;
and (vi) SP’s violation of FCC, trademark, copyright, telemarketing or
privacy laws.
21.3 |
Limitations.
|
Notwithstanding
Sections 21.1 and 21.2, if any claims, demands, liabilities, losses,
damages, judgments or obligations referenced in Sections 21.1 and 21.2 are
made, asserted or otherwise initiated against both ATS and SP, either in the
same or different actions, and both parties are jointly or severally liable
for
such actions, the indemnity obligations set forth in Sections 21.1 and 21.2
shall not apply and, accordingly, each party is responsible to bear its own
proportionate share of all costs and liabilities with respect to such
actions.
21.4 |
Procedure.
|
All
indemnification obligations set forth in Section 21 shall be subject to the
following requirements (provided that the failure to comply with such
requirements shall deprive the indemnified party of its right to indemnification
only to the extent that such failure materially prejudices the indemnifying
party): (i) the indemnified party shall provide the indemnifying party with
prompt written notice of any claim; (ii) the indemnified party shall permit
the indemnifying party to assume and control the defense of any action; and
(iii) the indemnified party shall not enter into any settlement, assume any
obligation to pay or compromise any claim without the indemnifying party’s prior
written consent, which consent
-11-
shall
not
be unreasonably withheld or delayed. In addition, the indemnified party may,
at
its own expense, participate in its defense of any claim.
22. |
MANNER
OF CONDUCTING BUSINESS. ATS and SP agree that, at all times during the
term of this Agreement, each party shall: conduct its business in
a manner
that reflects favorably on the Services and the ATS System; make
no false
or misleading representation with regard to each other or the Services
or
ATS System; and conduct its business and the performance of its
obligations under this Agreement in compliance with all applicable
laws
and regulations including all laws relating to tax, currency exchange,
export, and commercial corrupt
practices.
|
23. |
CONFIDENTIALITY.
“Confidential Information” means and all information which is of a
confidential, proprietary, or trade secret nature, whether or not
marked
as confidential, that is furnished or disclosed by either party
(“Disclosing Party”) to the other Party (“Receiving Party”) under this
Agreement, including the specific business terms of the Agreement,
business plans, technical data, performance data, programs, contracts,
client lists, financial information, sales and marketing plans, business
information, and any other information that is marked as “Confidential,”
“Proprietary,” “Trade Secret,” or in some other manner to indicate its
confidential, proprietary, or trade secret nature. Each of ATS and
SP
shall hold such Confidential Information in strict confidence and
shall
not reveal the same for a period of five (5) years after the termination
of this Agreement, except for any information which is: generally
available to or known to the public without violation of this Agreement;
known to such party prior to the negotiations leading to this Agreement;
or independently developed by such party outside the scope of this
Agreement. Neither party shall be in breach of its confidentiality
obligations hereunder if the Confidential Information is disclosed
pursuant to a subpoena, judicial or governmental order or requirement
(including the applicable disclosure requirements of the Federal
securities laws and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder in the event that SP,
shall
file a registration statement to initiate a public offering of its
securities during the term of this Agreement)
SP
acknowledges that ATS is a mandatory reporting company under
Section 12(b) of the Securities Exchange Act of 1934, as amended, and
as such, is subject to the applicable disclosure requirements of
the
Federal securities laws notwithstanding anything to the contrary
contained
in this section 23, but expressly subject to the immediately
preceding sentence, the disclosing party only makes such disclosure
to the
extent required and, prior to making such disclosure, takes all reasonable
steps to provide prompt and sufficient notice to the other party
so that
the other party may contest and/or limit such requirement, subpoena
or
order. Each of ATS and SP shall safeguard the Confidential Information
of
the disclosing party to the same extent that it safeguards its own
confidential materials or data relating to its own business, and
in any
event with no less than a reasonable standard of care. Except as
provided
above, neither ATS nor SP shall reveal any such Confidential Information
without the disclosing party’s express prior written consent. The parties
agree that an impending or existing violation of these confidentiality
provisions would cause to the disclosing party irreparable injury
for
which it would have no adequate remedy at law and the disclosing
party may
be entitled to obtain
immediate
|
-12-
injunctive
relief prohibiting such violation, in addition to any other rights
and
remedies available to it.
|
24. |
LIMITATION
OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY OR ANY THIRD PARTY IN ANY RESPECT FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, RELIANCE OR PUNITIVE DAMAGES,
WHETHER IN TORT, CONTRACT OR PRODUCT LIABILITY, NOR SHALL EITHER
PARTY BE
LIABLE FOR ANY LOSS OF PROFITS, REVENUE, DATA, GOODWILL, BUSINESS
OPPORTUNITIES OR ANY OTHER COMMERCIAL DAMAGE OF ANY KIND OR NATURE
WHATSOEVER. EXCEPT WITH REGARD TO ANY LIABILITY THAT RESULTS FROM
INTENTIONAL MISCONDUCT BY A PARTY OR BREACH OF CONFIDENTIALITY
OBLIGATIONS, IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY WITH
RESPECT
TO ANY TELEPHONES, NEW TELEPHONES OR SERVICES PROVIDED HEREUNDER
EXCEED
THE AGGREGATE AMOUNT PAYABLE UNDER THE TERMS OF THIS AGREEMENT RELATING
TO
THE SPECIFIC ACCOUNTS GIVING RISE TO ANY CLAIM, WHETHER IN CONTRACT,
TORT
OR OTHER LEGAL THEORY. IN THE EVENT THAT EITHER PARTY PROVES THAT
A
FRIVOLOUS LAWSUIT HAS BEEN INITIATED, THEN SUBJECT TO THE RULING
OF AN
ARBITRATOR, RULE 11 MAY APPLY.
|
25. |
APPROVAL.
Whenever prior approval or consent is required in this Agreement,
the
approval or consent shall be memorialized in
writing.
|
26. |
PUBLICITY.
Neither party, without the prior written consent of the other party,
will
make any news release or other public statement or disclosure regarding
the existence of the terms and conditions of all or any part of this
Agreement or any discussions or negotiations relating thereto, except
as
may be required by applicable securities laws, but only upon reasonable
advance notice to, and consultation with, the other
party.
|
27. |
FORCE
MAJEURE.
Neither Party shall be liable to the other Party or be deemed to
be in
breach of this Agreement by reason of any Excusable Delay. A Party
experiencing an Excusable Delay in its performance shall immediately
notify the other Party by telephone (to be confirmed in writing within
three days after the inception of the Excusable Delay) and shall
describe
in reasonable detail the circumstances causing such Excusable Delay.
The
Party experiencing Excusable Delay shall be excused from performance
of
such obligations so affected by the Excusable Delay event for the
period
during which the Excusable Delay event continues and for such time
thereafter as is reasonably necessary to overcome the effects of
such
Excusable Delay. Both Parties shall use all commercially
reasonable
efforts to overcome or work around the Excusable Delay event as soon
as
reasonably practicable. The term “Excusable Delay” shall mean a delay in
performance or failure to perform which is due to an event beyond
the
reasonable control of a Party and shall include, without limitation,
(a) acts of God, weather conditions, explosion, flood, earthquake, or
fire; (b) war or threat of war, sabotaging, riot, revolution, civil
disturbance or requisition; (c) acts, restrictions, regulations,
prohibitions or measures
|
-13-
of
any kind on the part of any governmental authority; (d) import and
export regulations or embargos; or (e) strikes, lockouts, or other
industrial actions or trade
disputes.
|
28. |
CHOICE
OF LAW.
This Agreement shall be governed by and construed in accordance with
the
laws of the State of New York for contracts executed and to be performed
entirely in such State.
|
29. |
ARBITRATION.The
parties shall use their commercially
reasonable
efforts to resolve any disputes,
controversies or claims arising out of, in connection with, or in
relation
to this Agreement, or the breach thereof (each, a “Dispute”). If SP and
ATS cannot resolve any Dispute to their mutual satisfaction
within a thirty (30) day period
after the commencement of such efforts, then, in each such instance,
the
Dispute
shall be submitted to binding arbitration pursuant to the rules of
the
American Arbitration Association before one arbitrator selected jointly
by
the ATS and SP; provided, however, that if the parties fail to select
an
arbitrator within thirty (30) days after initiation of arbitration,
the
American Arbitration Association shall make such selection. The arbitrator
shall be governed by the laws of the State of New York in the settlement
of any dispute submitted to him or her. The arbitration shall be
held in
the County and City of New York. The arbitrator’s award shall be final and
judgment may be entered upon it in any court having jurisdiction
thereof.
Arbitration as provided in this paragraph 29 shall be the sole and
exclusive remedy for any
Dispute.
|
30. |
ENTIRE
AGREEMENT; AMENDMENT.
This Agreement constitutes the entire agreement between the parties
with
respect to the subject matter hereof and supersedes all previous
proposals, negotiations, representations, commitments writings and
all
other communications between the parties, both oral and written.
No
change, amendment, modification, termination or attempted waiver
of any of
the provisions hereof shall be binding unless in writing and signed
by an
authorized signatory of both parties
hereto.
|
31. |
NOTICE.
Any notice required to be given by either party to the other shall
be
deemed given upon proof of delivery only when mailed first class
mail or
by nationally recognized overnight courier service, duly addressed
and
with proper postage, if in writing addressed to the party to whom
notice
is being given at the address of such party set forth
above.
|
32. |
ASSIGNMENT.
This Agreement is not assignable by either party hereto without the
consent of the other party. Notwithstanding the foregoing, either
party
may assign this Agreement to any of its affiliates or subsidiaries
without
the consent of the other Party; provided that the party assigning
the
Agreement shall remain liable for the performance of such affiliate
or
subsidiary.
|
33. |
SEVERABILITY/WAIVER.
If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall
not
affect the validity or enforceability of any other part or provision
of
this
|
-14-
Agreement.
No waiver by any party of any breach of any provision hereof shall
constitute a waiver of any other breach of that or any other provision
hereof.
|
34. |
EXPORT
COMPLIANCE. ATS agrees to comply with all applicable export control
legislation. Certain parts of the ATS System may be subject to United
States export laws prior to import to or export from another country
in
accordance with the Export Administration Regulations. ATS agrees
to
comply with such laws and regulations. Diversion contrary to U.S.
law is
prohibited and will be a breach of this
Agreement.
|
35. |
SURVIVAL.
The representations, warranties, limitations of liability,
confidentiality, accrued payment obligations, and indemnities set
forth in
this Agreement shall survive the expiration or other termination
hereof.
|
36. |
EXECUTION.
This Agreement may be executed in any number of counterparts, each
of
which shall be deemed an original, and all counterparts shall constitute
but one and the same instrument, sufficient evidence of which for
all
purposes shall be any set containing counterparts executed by both
Parties. The Parties agree that such counterparts may delivered by
facsimile and that such facsimile counterparts shall evidence a binding
agreement.
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
-15-
Please
acknowledge your acceptance of the above Agreement by signing where indicated
below.
Sincerely,
By:
/s/ Xxxx Xxxxx
Xxxx
Xxxxx, Co-President
Date:
Nov. 13/06
AGREED
TO AND ACCEPTED:
SUNROCKET,
INC.
By:
/s/ Xxxx Xxxx
Name,
Title: Xxxx Xxxx, President and CEO
Date:
11/14/06
|
-16-
Appendix A:
The ATS System
The
ATS
System is a multi-handset cordless broadband phone. The master unit connects
directly, using an RJ-45 connection, into the End User’s modem or router. Each
master unit is able to connect with multiple extension handsets. The extension
handsets receive their network connection by communicating with the master
unit
using radio. Their bases only serve to re-charge their battery. This phone,
and
future phones within this classification includes systems that have multiple
handset configurations regardless of the radio technology that is
used.
-17-
Appendix B:
Agent Fees
Telephones:
SP shall pay ATS the following Agent Fees for new End Users who activate
Customer Accounts in conjunction with their purchase of Telephones through
ATS,
its Strategic Accounts and its Non-Strategic Accounts and remain End Users
for a
period of *
days:
· |
* .
The maximum Agent Fee payable by SP under this structure is * .
|
· |
*
|
New
Telephones: SP shall pay ATS the following Agent Fees for new End Users who
activate Customer Accounts in conjunction with their purchase of New Telephones
through ATS, its Strategic Accounts and its Non-Strategic Accounts and remain
End Users for a period of *
days:
· |
*
|
________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-18-
Appendix C:
General Functions
1. |
Incoming
Call Rate Centers, Area Codes and Geographic
Availability
|
The
Services are designed for End Users who use them in geographic locations for
which SP can provide Enhanced 911 (E911) emergency support, which will initially
be limited to the geographic coverage region for the rate centers associated
with the available SP phone numbers. Enhanced 911 provides access to emergency
dispatch operators, who will automatically receive location and call-back
information with the call.
2. |
Local
Number Portability
|
Local
number portability (the service that allows consumers to have their phone number
moved from their previous service provider to SP) is currently available to
all
users in serviceable areas provided that the consumer’s existing provider
supports this function. Local number portability will continue to be made
available to all users in serviceable areas and will be made available to
existing users as it becomes possible in their area.
3. |
Reporting
|
SP
will
provide ATS with the following reports for each *
activity
within *
of the
end of such * :
a. |
*
Activity Summary: Summary of all Agent Fees, Co-Op Payments and
Commissions for each Strategic Account and Non-Strategic
Account
|
SP
shall
keep full, true and accurate records of all information necessary to accurately
calculate Agent Fees, Co-Op Payments and Commissions. Upon request from
time-to-time, but no greater than * ,
SP
shall make such records available for audit by ATS, * ,
during
normal business hours at SP’s principal place of business or such other
reasonable location determined by SP.
b. |
MAC-ID
Report: Detailed list of Telephone and New Telephone MAC-IDs activated
and
deactivated in the month, along with the service plan associated
with the
newly activated MAC-IDs.
|
________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-19-
Appendix D:
Service Obligations
All
customer services issues will first be directed to SP customer service via
web,
email or telephone. SP will handle all issues related to technical support,
billing and general customer service and will use its commercially
reasonable
efforts
to provide this service in accordance with its current service level standards
of operation. SP’s current customer service level standards are as
follows:
Hours
of operation:
Billing,
General Customer
|
|
And
Technical issues:
|
8
a.m. to 12 p.m. Monday to Friday
8 a.m. to 12 p.m. Saturday
8 a.m. to 12p.m. Sunday
|
Hold times: |
80% of all customer calls will be answered within
90 seconds with a maximum hold time average in
any 24 hour period of 10
minutes
|
E-mail response time: | Max: 24 Hours (not including auto-responder) |
In
the
event that for any reason SP provided customer service does not comply with
the
levels of service described above, SP will take immediate action to rectify
and
improve the level of service to be consistent with existing standards. Maximum
“hold times” above mentioned will not include aggregate hold times as a result
of a required transfer of customer service to ATS as described
below.
When
a
customer inquiry is received that involves issues or problems related to the
products provided by ATS, SP will use its commercially
reasonable
efforts
to troubleshoot the problem using troubleshooting
guidelines provided by ATS. ATS agrees to provide ongoing training and support
to SP customer service representatives in an effort to equip them to answer
questions related to ATS products. Such support will be made available by ATS
during SP’s customer service hours of operation, as outlined above.
Product
(ATS) Returns:
ATS
agrees to handle all aspects of ATS product returns (including, but not limited
to Telephones and New Telephones) regardless of the reason for the return.
In no
instance shall SP be required to take physical possession of or remedy defects
or other issues related to ATS devices or products. In the event SP
inadvertently receives ATS product returns, SP will immediately forward the
returns to ATS at the location specified by ATS. Additionally, in the event
SP
receives a request to accept return of an ATS product, the request will be
forwarded to ATS customer service for resolution. In the event that SunRocket
makes changes to its network that affects the consumers use of an ATS product,
SP will work with ATS to troubleshoot problems that are identified with ATS
products that are not the result of non-compliance with SunRocket certification
rules so as to develop a standard answer or software update that may be provided
to consumers so as to try to avoid product returns wherever
possible.
-20-
Should
ATS and SP agree to have SP or its other partners distribute Telephones and/or
New Telephones on ATS’ behalf, or to have SP purchase Telephones and/or New
Telephones for direct resale to existing and/or prospective SP subscribers,
ATS
and SP will mutually agree on the terms of such arrangements and the appropriate
handling of returns related to such sales.
-21-
Appendix E:
SP Minimum Customer Support Requirements
Prior
to Training (4 weeks prior to launch of Telephone or New
Telephone)
· |
Product
Overview describing the Telephone or New Telephone to be
launched..
|
· |
15
units of the Telephone or New Telephone to be used for customer support
reference and testing purposes.
|
· |
One
soft copy and 10 hard copies of the user manuals, installation guides
and
administrative guides for the Telephone or New
Telephone.
|
· |
Advance
copy of the Power Point presentation that will be used for training
purposes below.
|
Training
· |
ATS
will provide on-site “Train-the-Trainer” sessions of approximately 4 hours
each on a single visit per product introduction. The trainer must
be
available to train at a single location in the United States to be
determined by SP; multiple “Train-the-Trainer” sessions on that visit may
be required in SP’s sole
discretion.
|
· |
Trainers
must be available for “Train-the-Trainer” and additional follow ups 3
weeks before the device is available for sale to
consumers
|
o |
During
the first week, the trainer will be on-site at SP call centers performing
“Train-the-Trainer” sessions.
|
o |
During
the second 2 weeks, the trainer must be available to assist in answering
follow up questions and to finalize case base articles (protocols
for
dealing with common user
occurrences).
|
Post
Training
An
engineer or trainer must be available for regular calls as deemed reasonably
necessary by SP to answer further questions on the Telephones or New Telephones
and to assist in continual updates to case base articles.
-22-
Appendix F:
SP Customer Premise Equipment Certification Process
Section
A: Certification Requirements
These
certification requirements as set forth in Appendix F may be changed from
time to time by SunRocket in its sole discretion, provided that such changes
are
applied to the requirements given to all vendors equally with respect to
certification of new devices for interaction with the SP network.
Registration
Device
must support * .
Device
must stay registered.
Call-ID
field must not change.
SIP
Messages
Send
SIP messages to ATA, verify the ATA generated SIP messages are in accordance
with RFC
SFTF
Test
* ,
Unusual
reason phrase: TBD (received ACK for *
without
reason phrase)
SFTF
Test
* ,
Valid
request-URI: TBD (INVITE rejected)
SFTF
Test
* s,
Missing Required Header Fields: TBD (all mandatory header fields
present)
SFTF
Test
* ,
Redirection: TBD (successfull redirection)
SFTF
Test
* ,
Digest
Authentication of REGISTER without qop: TBD (authentication reply is
valid)
SFTF
Test
* ,
Server-driven re-registration period: TBD (received REGISTER shortly before
expires)
SFTF
Test
* s,
Presence of the rport parameter in Via: TBD (Via contains rport)
SFTF
Test
* ,
Proper
Generation of transaction ID: TBD (branches in CANCEL and INVITE are
equal)
SFTF
Test
* s,
Ignore
Record-Route from negative replies: TBD (Route header omitted because of
negative reply)
SFTF
Test
* ,
Correct
Route set construction: TBD (both RR and Route entries are equal)
SFTF
Test
* ,
To-tag
resetting after * xx:
TBD
(To-tag is equal in redirected INVITE and original INVITE)
SFTF
Test
* ,
To-tag
in CANCEL: TBD (To-tag is equal in CANCEL and INVITE)
____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-23-
SFTF
Test
* ack,
Proper Generation of ACK: TBD (r-uri and Via of INVITE and ACK are
equal)
SFTF
Test
* can,
Proper Generation of CANCEL: TBD (r-uri and Via of INVITE and CANCEL are
equal)
SFTF
Test
* s,
Correct loose routing: TBD (Loose routing is correct in request URI and Route
header)
SFTF
Test
* s,
Correct strict routing: TBD (Strict routing is correct in request URI and Route
header)
SFTF
Test
* s,
Correct UDP retransmission timing: TBD (UDP request retransmission matches
RFC)
SFTF
Test
* ,
Presence of RFC3261 branch ID in Via: TBD (branch value begins with magic cookie
‘z9hG4bK’)
SFTF
Test
* ,
Presence of From tag: TBD (From contains tag)
SFTF
Test
* ,
Presence of Content-Length header: TBD (Content-Lenght is present)
SFTF
Test
* ,
Presence of Max-Forwards header: TBD (Max-Forwards is present)
SFTF
Test
* ,
OPTIONS
support: TBD (OPTIONS answered with * )
SFTF
Test
* ,
Correct
Via returning: TBD (Via in first reply is equal to Via in first
request)
SFTF
Test
* ,
Require
handling: TBD (INVITE rejected with * )
SFTF
Test
* ,
UTF in
display names: TBD (request with UTF display names accepted)
SFTF
Test
* ,
A short
torture request: TBD (torture INVITE accepted)
SFTF
Test
* ,
Extra
trailing octets in a UDP datagram: TBD (trailing zeros ignored and INVITE
accepted)
MOS
Test
* ,
Service
Unavailable with Retry-After: TBD (next registration request is at retry-after
interval)
MOS
Test
DNS_SRV, multiple SIP Proxies offered: TBD (fail over to alternate SIP
Proxy)
Verify
that ATA implements a backoff algorithm in case of NOT receiving
*
OK from Proxy during registration request
*
*
*
*
Call
Scenarios
Device
must be compliant with SIP RFCs, this applies to all tests in this
section.
Call
setup, caller hang-up before call is answered
____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-24-
Normal
call, call is answered
-25-
Other
Telephony Features
Call
waiting
Call
waiting tone must be heard when call is active and another call is
incoming.
Distinctive
ring
Device
must support Bellcore-dr1, Bellcore-dr2, Bellcore-dr3 and Bellcore-dr4
tones.
Message
waiting indicator
Device
must indicate to user when it receives Messages-Waiting: yes.
Stutter
tone
Stutter
tone is heard when handset is off hook and voice mail is waiting.
Caller
ID
Calling
party Caller ID is displayed on the handset.
Customer
enters numbers via SunRocket customer portal, device must send *
through
*
in the
INVITE.
Fax
(if device should reasonably be expected to allow for faxing- e.g. through
extra
RJ-11 port or otherwise)
A
ten
page fax is sent, fax must be received successfully with comparable image
quality to the original.
*
enabled
____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-26-
Modem
Answering
machine
Other
Ring
back
should be heard in under *
seconds.
Device
must support NTP.
Device
must be configurable for different timezones.
Device
must present correct local time to handset on incoming calls.
Device
must recover gracefully and boot up on previous firmware.
Device
must recover gracefully and boot up on previous configuration.
Device
must not drop call, it should wait for call to end and then update
firmware.
Device
must not drop call, it should wait for call to end and then update
configuration.
Device
must recover gracefully and boot up on previous
configuration.
____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-27-
Device
must recover gracefully and boot up on previous firmware.
Device
must support a method to reset user password.
Device
must support remote access (ssh, http, etc), this is toggled on and off in
the
configuration file.
Any
IVR
codes the device supports must be documented. No IVR code can circumvent
configuration settings related to security or SIP credentials.
Document
how to send updated configuation file.
Document
how to send updated firmware.
Document
how to retrieve running configuration from unit.
Router
features
If
supported, provide example syntax.
If
supported, provide example syntax.
If
supported, provide example syntax.
Measure
time to download file, device and file server on same lan, time must be under
one minute.
Device
must achieve minimum * Mb/s
on
all tests with the exception of QoS.
Device
must not reboot under load.
http,
ftp
and scp tests used a *
binary
file.
Get
the
file *
times,
compute average.
QOS
used
TBF with a limit of *
Kb/s
( *
Mb/s).
No
calls
were up.
ATA
config
|
Server
location
|
Traffic
type
|
Throughput
|
NAT
|
WAN
|
http
|
Mb/s
|
NAT
|
WAN
|
ftp
|
Mb/s
|
NAT
|
WAN
|
scp
|
Mb/s
|
NAT
|
WAN
|
ttcp
push to WAN
|
Mb/s
|
NAT
PF *
|
LAN
|
http
|
Mb/s
|
NAT
PF *
|
LAN
|
ftp
|
Mb/s
|
NAT
PF *
|
LAN
|
scp
|
Mb/s
|
____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-28-
NAT
PF *
|
LAN
|
ttcp
push to LAN
|
Mb/s
|
NAT
mac clone
|
WAN
|
http
|
Mb/s
|
NAT
mac clone
|
WAN
|
ftp
|
Mb/s
|
NAT
mac clone
|
WAN
|
scp
|
Mb/s
|
NAT
mac clone
|
WAN
|
ttcp
push to WAN
|
Mb/s
|
NAT
mac clone PF *
|
LAN
|
http
|
Mb/s
|
NAT
mac clone PF *
|
LAN
|
ftp
|
Mb/s
|
NAT
mac clone PF *
|
LAN
|
scp
|
Mb/s
|
NAT
mac clone PF *
|
LAN
|
ttcp
push to LAN
|
Mb/s
|
Bridge
|
WAN
|
http
|
Mb/s
|
Bridge
|
WAN
|
ftp
|
Mb/S
|
Bridge
|
WAN
|
scp
|
Mb/s
|
Bridge
|
WAN
|
ttcp
push to WAN
|
Mb/s
|
Bridge
|
LAN
|
http
|
Mb/s
|
Bridge
|
LAN
|
ftp
|
Mb/s
|
Bridge
|
LAN
|
scp
|
Mb/s
|
Bridge
|
LAN
|
ttcp
push to LAN
|
Mb/s
|
QOS
- TBF
|
WAN
|
http
|
Mb/s
|
QOS
- TBF
|
WAN
|
ftp
|
Mb/s
|
QOS
- TBF
|
WAN
|
scp
|
Mb/s
|
QOS
- TBF
|
WAN
|
ttcp
push to WAN
|
Mb/s
|
QOS
- TBF
|
LAN
|
http
|
Mb/s
|
QOS
- TBF
|
LAN
|
ftp
|
Mb/s
|
QOS
- TBF
|
LAN
|
scp
|
Mb/s
|
QOS
- TBF
|
LAN
|
ttcp
push to LAN
|
Mb/s
|
Overnight
test, WAN to LAN:
Test
ran
for n hours.
A
wget
loop completed n downloads of a * MB
file.
Average
throughput was n Mb/s
PC
interface saw roughly n GB RX, n GB TX.
The
ATA
did / did not reboot.
Service-Name
field must be blank in PADI packets.
Device
must get IP address, netmask, default gateway and DNS server information from
PPPoE server.
Device
must support MAC Spoofing with any valid MAC address. This is only for TCP/UDP
packets on the local lan. When the device requests its configuration file,
it
must uses its real MAC address in the path.
____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-29-
Device
must support Cisco and Nortel VPN clients in that no special configuration
changes need to be made to support customer VPN.
Describe
how device is remotely managed, access methods, etc.
Device
must support http GET of its configuration and firmware files. The path for
both
of these must be fully customizable by SunRocket. Configuration files must
include the device mac address in the path.
No
ports
from any LAN computer should be exposed on the WAN side of the ATA unless
explicitly configured.
Device
must support TCP and UDP port forwarding.
Must
be
able to enter the IP address of an internal host, device exposes all ports
to
this IP address except those ports forwarded otherwise.
User
account must be able to set all WAN IP address and connection method related
parameters.
DHCP
LAN
network must default to *
is the
device itself. Configuration file must support ability to define alternate
LAN
addresses.
Admin
web
access must be disabled by default, with password protected access
only.
Device
WAN interface must be interoperable with consumer grade home routers, DHCP
negotiation must be successful, device must be able to route traffic to and
from
WAN interface.
Device
WAN interface must be interoperable with cable modems, DHCP negotiation must
be
successful, device must be able to route traffic to and from WAN
interface.
External
port scan
Nessus
Port Scan
A
port
scan will be conducted to ensure that only those ports configured for SIP and
remote management (if enabled) are exposed on the WAN interface. All other
ports
must be closed.
____________________
*
Subject
to a request for confidential treatment; Separately filed with the
Commission.
-30-
Appendix F:
SP
Customer Premise Equipment Certification Process
(Cont’d)
Section
B: Certification Process
1. |
SP
makes decision to receive sample to
certify
|
2. |
Certification
entails three processes:
|
o |
Gizmo
Management System (GMS) integration
|
o |
Feature
compatibility and testing
|
o |
Performance
and load testing
|
3. |
Gizmo
Management System (GMS) Integration
|
o |
Ability
to serve configuration files to remote
ATA
|
o |
Ability
to serve new firmware versions to remote
ATA
|
o |
Ability
to do an initial configuration of ATA for new
customer
|
o |
Software
development effort to configure GMS to support new
ATA
|
4. |
Feature
and Compatibility Testing
|
o |
Test
and support all SP service features
|
§ |
“*”
codes
|
§ |
Call
management features
|
o |
SIP
protocol compatibility with SP
Platform
|
5. |
Performance
and Load Testing
|
o |
Put
IP traffic through device at line
speed
|
§ |
Both
directions
|
o |
Long
duration load testing
|
§ |
How
long does device stay up at line
speed
|
6. |
Integration
Testing in Development Lab
|
o |
GMS
and ATA integration testing
|
7. |
Regression
Testing in Operations QA Lab
|
o |
GMS
testing with currently supported
ATA’s
|
8. |
Decision
on Certification Approval
|
o |
Make
sure all tests were done and results
reviewed
|
o |
Confirm
devices meet minimum Certification Requirements outlined in Section A
above
|
-31-