1
EXHIBIT 10.11
CELLULAR ONE(R) LICENSE AGREEMENT
between
Cellular One Group
and
Mercury, Inc.
2
CELLULAR ONE LICENSE AGREEMENT
TABLE OF CONTENTS
SECTION TITLE PAGE
NO. NO.
X. XXXXX 2
II. TERM AND RENEWAL 3
III. DUTIES OF LICENSOR 4
IV. DUTIES OF LICENSEE 6
V. FEES AND REPORTING 8
VI. MARKS 9
VII. CONFIDENTIAL INFORMATION 12
VIII. ADVERTISING 14
IX. INSURANCE 17
X. TRANSFER OF INTEREST 18
XI. DEFAULT AND TERMINATION 20
XII. OBLIGATIONS UPON TERMINATION OR EXPIRATION 24
XIII. INDEPENDENT STATUS AND INDEMNIFICATION 25
XIV. APPROVALS AND WAIVERS 26
XV. NOTICES 27
XVI. ENTIRE AGREEMENT 27
XVII. SEVERABILITY AND CONSTRUCTION 28
XVIII. APPLICABLE LAW 28
XIX. ACKNOWLEDGMENTS 29
-i-
Cellular One Group
License Agreement
3
CELLULAR ONE(R) LICENSE AGREEMENT
THIS AGREEMENT is entered by and between Cellular One Group, a Delaware
general partnership ("Licensor"), and Mercury Inc., a corporation/partnership
organized under the laws of [ILLEGIBLE] ("Licensee").
PREAMBLE
Licensor is a general partnership (the "Partnership") of Cellular One
Marketing, Inc. ("COMI"), a subsidiary of Southwestern Xxxx Mobile Systems,
Inc. ("SBMS"), and Cellular One Development, Inc., a subsidiary of XxXxx
Cellular Communications, Inc. ("XxXxx"). 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 as the "Partnership Partners").
SBMS previously owned and licensed the service xxxx "Cellular One" and
certain related trademarks, service marks and designs, which marks SBMS
assigned to the Partnership following formation of the Partnership. Licensee
already may be using one or more versions of the Cellular One xxxx pursuant to
a previous license agreement with SBMS, which agreement was assigned to
Licensor as of December 31, 1990.
Licensor intends to use and license these marks, the earlier/other
versions thereof, the marks designated on Exhibit A hereto and such other marks
as it may hereafter designate in writing (collectively referred to as the
"Marks") for use in connection with the business of providing public cellular
radio telecommunications service ("Cellular Telephone Service") and equipment
("Cellular Telephone Equipment"). Licensor's goal is to build nationwide
recognition of the Marks as synonymous with dependable, high quality Cellular
Telephone Service through the licensing of independent Cellular Telephone
Service providers on the Block A or non-wireline frequencies ("Providers") who
meet the qualifications established by Licensor. Licensees will operate in the
various markets ("market(s)") recognized and defined by the Federal
Communications Commission ("FCC").
Toward this end, Licensor desires to grant licenses to use the Marks to
Providers who agree to conduct their businesses in full accordance with FCC
directives, interconnection guidelines, protocols, and other technical industry
standards issued from time to time by the Telecommunications Industries
Association, the Electronics Industries Association and comparable industry
groups, as well as other standards of service, quality and customer
-1-
Cellular One
License Agreement
4
satisfaction specified from time to time by Licensor (collectively referred to
as "Service Standards").
Licensee currently provides or, prior to the acceptance of this License
Agreement by Licensor, will provide Cellular Telephone Service as a Provider
pursuant to an FCC license for the market(s) described in Exhibit B (the
"Licensed Territory").
Licensee desires to receive a license from Licensor to use the Marks to
identify and promote its Cellular Telephone Service in the Licensed Territory
and is willing to provide such service in accordance with the Service
Standards, pursuant to the provisions of this License Agreement.
The parties therefore agree as follows:
X. XXXXX
Licensor grants to Licensee, upon the terms and conditions of this
License Agreement, the right, license and privilege to use the Marks only in
the Licensed Territory and only to identify and promote its Cellular Telephone
Service, which shall include ancillary support services such as voice mail on
the telephone switch, extended service and warranty provisions for cellular
telephones and the like. This License Agreement does not give Licensee any
right to use the Marks in connection with Cellular Telephone Equipment or any
rights to use the trademark (as opposed to the service xxxx) Cellular One. As
long as this License Agreement is in effect, Licensee agrees to use the Marks
in connection with the provision of Cellular Telephone Service in the Licensed
Territory. If this License Agreement grants a license to Licensee with respect
to multiple markets, then in the event that 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, 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. During the term of this License
Agreement or any renewal term, Licensor agrees that it will not license any
other Provider or other mobile communications service to use the Marks in the
Licensed Territory, provided Licensee is actively using the Marks to identify
itself as a Cellular One Provider in the Licensed Territory. Subject to the
foregoing grant to Licensee of the right to use the Cellular One service xxxx
for Cellular Telephone Service in the Licensed Territory, Licensee acknowledges
that Licensor has the right to use and license the Marks in other territories
anywhere in the world and to use and license the Marks and Cellular One
trademark
Cellular One Group -2-
License Agreement
5
or any other trademarks or service marks within or outside of the Licensed
Territory.
II. TERM AND RENEWAL
A. Except as otherwise provided in this License Agreement,
the term of this License Agreement is five (5) years, beginning on the date on
which Licensor signs this License Agreement (the "Effective Date").
B. Licensee may, at its option, renew the license granted by
this License Agreement for three (3) additional terms 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;
2. Licensee continues to hold its FCC license(s) to
provide Cellular Telephone Service in the market(s) with respect to which a
renewal is being requested;
3. 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 or market changes
occurring during the prior five (5) year term, (iii) which Licensor determines
in good faith are necessary to protect the Marks, or (iv) which relate to
charges and fees (including increases) which Licensor believes in good faith
are necessary to provide adequate support for the Cellular One license program
generally;
4. The most recent customer satisfaction survey with
respect to Licensee's Cellular Telephone Service (as described in Section
III.C. of this License Agreement) conducted before the end of the expiring
term indicates a rating of at least 65%, and, if such survey produces a rating
below 85% (or such increased level as may be required pursuant to the
provisions of Section IV.A. below), then Licensee shall have agreed in writing
to use its best efforts to improve its customer satisfaction rating to at least
85% (or such increased level as may be required pursuant to the provisions of
Section IV.A. below) by a certain
Cellular One -3-
License Agreement
6
time as reasonably established by Licensor (if the time prescribed by Licensor
for such improvement extends beyond the expiring term of this License
Agreement, such timely improvement will become a condition of effective
renewal); and
5. At the end of the expiring term, Licensee has
satisfied all monetary obligations owed by Licensee to Licensor, and has timely
met such obligations throughout the term of this License Agreement, and shall
not be in default under this License Agreement.
III. DUTIES OF LICENSOR
All duties of Licensor under this License Agreement are to Licensee, and
no other party is entitled to rely on, enforce or obtain relief for breach of
any such obligation, either directly or by subrogation. Licensor shall
undertake the following duties:
X. Xxxxx Usage Guidelines
Licensor will provide Licensee with written and graphic
guidelines for the correct reproduction, application and presentation of the
Marks, which may include Xxxx specimens, samples of advertisements and clip art
indicating color, proportion, and format.
B. Technical Guidelines
Licensor will provide Licensee with a Guide to Quality Operations
containing suggestions for providing customers with high quality Cellular
Telephone Service, and other materials as Licensor deems appropriate.
C. Customer Satisfaction Surveys
Licensor will, 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 Cellular Telephone Service. The methodology of the survey will be
determined by the Survey Company and Licensor. An outline of current survey
methodology, which may change from time to time, is attached as Exhibit C. The
results of all surveys of Licensee's customers will be shared with Licensee to
assist Licensee in improving its business. The first of these surveys, which
will be conducted in Licensee's first year of operation as a licensee
hereunder, is for advisory purposes only; the results of subsequent surveys
will be used to evaluate the general level of customer satisfaction and to
assist Licensor in determining
Cellular One -4-
License Agreement
7
whether or not Licensee is meeting the Service 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 Cellular One licensees 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 may be disclosed to Licensor).
D. Licensee Advisory Council
On or before June 30, 1992, Licensor will establish, and will
thereafter maintain, during the term of this License Agreement, an elected
council of licensees ("Advisory Council") comprised of non-partner licensees
from a broad cross-section of markets, MSA's and RSA's, throughout the United
States to advise and consult with Licensor regarding material Cellular One
license matters such as advertising, marketing and customer service
standards and to act as a liaison organization between the Licensor and the
Cellular One licensees. The procedure for selecting Advisory Council members
and the charter of responsibility for the Advisory Council will be established
by Licensor in time to meet the June 30, 1992 anticipated effective date and
will be communicated in writing by Licensor to Licensee as soon as practicable.
Such procedures and responsibilities will be 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 charter of responsibility shall provide 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.
E. National and Regional Advertising
Licensor will establish and maintain, whenever Licensor shall
determine that to do so would be in the best interests of its licensees
generally, the Cellular One Promotional Fund, as described in Section VIII.C.
of this License Agreement. Licensor plans to administer such Fund with the
goal of enhancing the image of the Marks.
F. National/Regional Account Programs
Licensor may, in its discretion, offer a national and/or one or
more regional account programs under which, through the
Cellular One -5-
License Agreement
8
voluntary cooperation of its licensees in various markets, client companies
with multiple market operations could enter into a single contract arrangement
for Cellular Telephone Service for their employees located in such markets.
Licensor or its designee shall administer any such national or regional
accounts program(s).
IV. DUTIES OF LICENSEE
Licensee understands and acknowledges that the high quality operation of
its Cellular Telephone Service 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
Licensee agrees to provide high quality Cellular Telephone
Service to its customers by complying with the Service Standards. Furthermore,
Licensee shall attain and maintain an overall customer satisfaction rating of
at least 85%, or such increased level as may be required pursuant to the
provisions of this Section IV.A. Licensor reserves the right to increase the
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 Cellular Telephone
Service industry 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 customer satisfaction
rating below 85% (or below any higher percentage established by Licensor as
described above) in any market in the Licensed Territory, then Licensee will be
assigned probation status under Section XI.E. of this License Agreement and
surveys will be commissioned every six (6) months in that market until Licensee
has achieved an overall 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).
-6-
Cellular One
License Agreement
9
B. Legal Compliance
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 governmental licenses, permits and approvals, including without
limitation, an FCC construction permit and an FCC license to provide Cellular
Telephone Service in each market in the Licensed Territory. In the event that
Licensee's FCC construction permit or FCC license to provide Cellular Telephone
Service in one or more of the market(s) in the Licensed Territory is scheduled
to expire during the term of this License Agreement, including any renewal
term, Licensee agrees to comply with all requirements for extension of said
license(s) and permit(s) and to use its best efforts to obtain the extension(s)
for the maximum possible period(s). Licensee shall furnish to Licensor,
promptly following Licensee's receipt thereof, a copy of any FCC notice
regarding an actual or threatened termination or revocation of Licensee's FCC
license or FCC construction permit for any market in the Licensed Territory.
Licensee agrees to notify Licensor in writing within five (5) days after
Licensee shall become aware of the commencement of any action, suit or
proceeding, and of 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
Cellular Telephone Service business.
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 or Licensor or Licensee's Cellular
Telephone Service business, or which constitutes deceptive or unfair
competition, consumer fraud or misrepresentation.
D. Information to Licensor
Upon Licensor's request, subject to the confidentiality
requirements described in Section III.C. above, Licensee must promptly furnish
to a Survey Company designated by Licensor a complete and accurate customer
list of its Cellular Telephone Service subscribers in a format reasonably
prescribed by the Licensor, including computerized magnetic media, together
with such reasonable information which the Survey 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 in
conducting a customer survey to ascertain the
-7-
Cellular One
License Agreement
10
quality level of Licensee's Cellular Telephone Service and related market
research data in accordance with the methodology set forth in Exhibit C, or as
Licensor may reasonably deem appropriate. Licensee shall provide Licensor with
additional information reasonably requested by Licensor regarding matters such
as Licensee's legal status (for example, change in control, affiliated
companies, etc.), Licensee's use of the Marks, and other matters which Licensor
may reasonably determine are relevant to Licensee's performance under this
License Agreement.
V. FEES AND REPORTING
A. Application Fee
Upon execution of this License Agreement, Licensee shall pay to
Licensor a nonrefundable application fee of Five Hundred Dollars ($500.00). If
Licensee has been using one or more of the Marks in connection with its
Cellular Telephone Service business pursuant to a valid license with
SBMS/Licensor and previously paid an initial license fee of $2,250, then the
entire amount of $2,250 shall be credited to Licensee's account, to be applied
first towards the $500 application fee and the balance towards the initial
annual license fee described in Section V.B. below.
B. Annual License Fee
Licensee agrees to pay to Licensor an annual license fee equal to
two cents ($0.02) per person in the Licensed Territory based on the total
population of each of the market(s) in the Licensed Territory as determined by
the most recent population estimates produced by Xxxxxxxx Marketing Company or
another 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 the initial year of the license. The annual license fee
shall be paid on or before January 31 of each year, for that full calendar
year. The first annual license fee shall be paid upon execution of this
License Agreement for a full year; the second annual fee shall be paid on or
before the next following January 31 and the license fee equal to two cents
($0.02) per person in the Licensed Territory will be pro rated to reflect the
portion of that calendar year covered by the first payment, if any. The annual
license fee will not be refunded in whole or in part under any circumstances;
provided, however, that upon expiration of this License Agreement at the end of
the initial term or any renewal term, Licensor agrees to refund a pro rated
portion of the annual license fee reflecting that portion of that year's
calendar year remaining after the date of expiration, less any set off for any
other fees owing to Licensor. All annual license fees shall be payable in good
funds at
-8-
Cellular One
License Agreement
11
Licensor's address specified herein, or at such other address as Licensor shall
from time to time designate in writing.
C. Advertising Fees
Upon Licensor's establishment of the Cellular One Promotional
Fund described in Section VIII.C. of this License Agreement, Licensee agrees to
pay to Licensor an annual advertising fee not to exceed 5.0 cents ($0.05) per
person in the Licensed Territory, based upon the population estimates described
in Section V.B. above. The annual advertising fee shall be payable in
approximately equal, twice yearly, payments, with the first such payment being
due on February 15 and the second such payment being due on July 31 in each
year during the term of this License Agreement, including any renewal term, in
which Licensor shall determine that such advertising fees shall be payable to
establish or maintain the Promotional Fund, as contemplated by Section VIII.C.
Advertising fees shall not be refundable under any circumstances.
Notwithstanding the foregoing, if Licensee can demonstrate to the satisfaction
of Licensor that Licensee has less than three hundred thousand (300,000)
billable minutes of air time per month in any market in the Licensed Territory,
Licensee shall not be obligated to pay any advertising fee with respect to such
market until the calendar year following the year in which Licensee shall first
obtain, in any single calendar month, three hundred thousand (300,000) billable
minutes of air time in such market. For purposes of this Section V.C.,
Licensor agrees to accept the bona fide report of Licensee's independent
auditing firm as appropriate confirmation that Licensee has less than three
hundred thousand (300,000) billable minutes of air time per month in any market
in the Licensed Territory.
D. Interest on Late Payments
If any payment of the annual license fee or the payment of any
advertising fee is overdue, Licensee shall pay Licensor, in addition to the
overdue amount, interest on such overdue amount from the date it was due 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.
VI. MARKS
A. Licensor is the owner of all right, title and interest in
and to the Marks.
-9-
Cellular One
License Agreement
12
B. 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, and only in accordance with the written and graphic guidelines
provided for the correct reproduction, application, and presentation of the
Marks. If Licensee is currently using earlier or modified versions of the
Marks pursuant to a valid license agreement with Licensor, then the following
additional provisions shall be applicable:
(i) all advertising and promotional materials
utilized by Licensee for the first time on or after July 1, 1992 shall use only
the Marks designated by Licensor;
(ii) by July 1, 1992, Licensee shall cease all
use of tag lines, logos and bugs in connection with the Marks in all outdoor or
public media (including, without limitation, vehicles, building signs,
billboards and shopping mall displays), all print media (including, without
limitation, newspaper advertisements, magazine advertisements and listings in
yellow pages and other telephone directories), and all broadcast media
(including, without limitation, radio and television advertising); provided,
however, that Licensee may continue to use previously approved tag lines, logos
and bugs in connection with the Marks on business cards, stationery, customer
contracts and invoices used for customer purposes (and other purposes expressly
authorized by Licensor from time to time in the written graphic guidelines
referred to in Section VI.B.1. above) and may permit any authorized agent or
similar dealer designations which may be approved from time to time by
Licensor; and
(iii) by January 31, 1994, Licensee shall cease
all use of earlier or modified versions of the Marks, and shall use only the
Marks designated for use by Licensor, except for the limited use permitted by
Section VI.X.x.(ii) above.
2. Licensee shall use the Marks only in
connection with providing Cellular Telephone Service in the Licensed Territory.
3. Licensee shall identify the Licensor as the
registered owner of the Marks in conjunction with the operation of Licensee's
Cellular Telephone Service business, including but not limited to the
identification of Licensor as such on Licensee's invoices, order forms,
receipts and contracts.
-10-
Cellular One
License Agreement
13
4. Except as provided in Section X.C. below, Licensee
shall have no right to sublicense the Marks to any other person or entity;
except that Licensee may permit authorized dealers or agents of Licensee who
market the services provided by Licensee in the conduct of its Cellular
Telephone Service business to have limited use of the Marks. Such use by a
dealer or agent 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 and dealers and to provide or cause to be provided to Licensor,
from time to time, such reasonable information concerning the use of the Marks
by such dealers and agents to permit Licensor to ascertain Licensee's
compliance hereunder.
5. Licensee's right to use the Marks is limited to the
uses authorized under this License Agreement.
6. Licensee shall not use the Marks as part of its
corporate or other legal name. Licensee shall file and maintain trade name or
fictitious name registrations in the appropriate jurisdictions within the
Licensed Territory, and shall execute any documents deemed necessary or
desirable by Licensor or its counsel to obtain protection for or registration
of Licensor's ownership 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 the 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 the 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. Notwithstanding the
foregoing, 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 to Licensee for any loss of the 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)
-11-
Cellular One
License Agreement
14
shall be limited to the amount of the application fee plus the annual license
fee paid by Licensee under this License Agreement for the year during which
such liability is determined in the Licensed Territory.
8. The Marks are valid and serve to identify the
Cellular Telephone Service 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.
9. Licensee's use of the Marks pursuant to this
License Agreement does not give Licensee 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 Licensee's 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 Licensee's use of the Marks.
10. Licensor has and retains the following rights,
among others:
(a) To use the Marks itself, in connection with
regional and national advertising, and, subject to the provisions of Section I
hereof, with selling products and services both within and outside the Licensed
Territory;
(b) To grant licenses for use of the Marks in
addition to those licenses already granted to existing licensees of the Marks;
and
(c) To use the Marks in any manner reserved for
Licensor pursuant to Section I.
11. In the event that any of the Marks, 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.
VII. CONFIDENTIAL INFORMATION
A. Definition
Any and all information, knowledge, know-how, and techniques
which Licensor or Licensee designates as confidential
-12-
Cellular One
License Agreement
15
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 agrees 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
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
Cellular Telephone Service business in that market should be disclosed to that
Partnership Partner or its affiliates. The parties agree that statistical
performance information regarding all 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
-13-
Cellular One
License Agreement
16
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:
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. Licensee shall display the Marks in
the manner prescribed by Licensor on all signs and all other advertising and
promotional materials used in connection with Licensee's Cellular Telephone
Service business. If requested by Licensor, Licensee at its own expense shall
promptly provide to Licensor photocopies of all print advertisements and
promotional materials and audio/video cassettes of radio/television advertising
using the Marks which Licensee has used at any time during the six 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, promotional brochures and sales
aids. Licensee may use all or any of these materials in its sole discretion.
-14-
Cellular One
License Agreement
17
C. Cellular One Promotional Fund
Licensee agrees that Licensor shall have the right, in its sole
discretion, to establish a fund for national and/or regional advertising and
promotional programs and activities (the "Cellular One Promotional Fund" or the
"Fund") for licensees of the Marks and to determine, subject to the maximum
limits provided in Section V.C., 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, commencing on or after January 1, 1993. Upon
establishment of the Cellular One Promotional Fund, Licensee agrees to make
contributions 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. Notwithstanding the foregoing,
Licensor agrees that approximately twenty percent (20%) of the advertising fees
paid by Licensee with respect to any market in the Licensed Territory which
receives a customer survey satisfaction rating (determined pursuant to Section
III.C. hereof) of more than 90% for two (2) consecutive annual survey periods
shall be spent in such market solely to promote the Marks, utilizing, in each
case, the advertising materials developed by Licensor. The special allocation
of advertising fees contemplated by this paragraph shall be based upon the
amount of fees paid for the year in which the second consecutive required
customer survey rating is achieved, but will generally be expended or allocated
during the following year. Any advertising fees which are to be specially
allocated pursuant to the provisions of this Section VIII.C.1. and which are
not expended during the year following the year in which such fees become
subject to the special allocation provisions of this Section VIII.C.1. shall
not be used or otherwise made available for any special allocation in the
future.
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
-15-
Cellular One
License Agreement
18
and/or promotional activities including the cost of preparing and conducting
television, radio, magazine, 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 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.F. 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. Each of Licensor's company-owned Cellular Telephone
Service businesses operating under the Marks, if any, and each Cellular
Telephone Service business operating under the Marks owned by a Partnership
Partner or its affiliate, if any, will be required to make contributions to the
Cellular One Promotional Fund on the same basis as assessments required of
other licensees of the Marks.
4. Licensee shall contribute to the Cellular One
Promotional Fund by separate check made payable to the Fund. 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. 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.
5. 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 remain 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.
6. 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
-16-
Cellular One
License Agreement
19
be prepared annually by an independent certified public accountant selected by
Licensor and shall be made available to Licensee upon written request.
7. 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.
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,
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 Cellular Telephone Service business. Licensor and the
Partnership Partners, and their respective 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 non-owned
vehicles, and property damage liability coverage, naming Licensor and the
Partnership Partners, and their respective officers, directors, shareholders
and employees, as additional insureds in each such policy or policies. Until
such time as
-17-
Cellular One
License Agreement
20
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;
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 30 days after this License Agreement is executed, and
thereafter at least 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 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 any
subsidiaries, partners and affiliates of Licensor, from claims against or
liabilities of Licensor or such subsidiaries, partners or affiliates of
Licensor arising under this License Agreement.
-18-
Cellular One
License Agreement
21
B. Transfer and Pledge by Licensee
Except as hereinafter provided, Licensee may not assign or
transfer any of its rights under this License Agreement. Licensee may transfer
its rights under this License Agreement in connection with a transfer of its
Cellular Telephone Service business for one or more of the market(s) in the
Licensed Territory to an affiliate transferee in a pro forma assignment as
recognized by FCC regulations currently at 47 CFR Section 22.39. If Licensee
desires in the Licensed Territory (i) to sell its Cellular Telephone Service
business for one or more markets and assign its rights under this License
Agreement with respect to such market(s) other than in connection with such a
pro forma assignment, or (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, Licensee shall notify Licensor in
writing, and Licensee shall be entitled to transfer, assign, or pledge its
rights under this License Agreement, 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 this License Agreement (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).
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.
4. Where Licensee provides Cellular Telephone Service
in more than one market and the transfer involves market(s) comprising less
than all of the markets in the Licensed Territory, the transferee shall enter
into Licensor's then current form of license agreement for the market(s) being
transferred. This License Agreement shall remain in full force and effect with
respect to Licensee's remaining market(s), if any, following the transfer.
5. The transferee shall pay Licensor any transfer fees
or charges then being charged generally by Licensor to transferees of licenses
to use the Marks.
-19-
Cellular One
License Agreement
22
C. Right to Add Affiliate as Party
If Licensee desires, in the Licensed Territory, to authorize an
affiliate (which for purposes hereof shall be an entity controlled by, under
common control with or controlling the Licensee) to use the Marks in connection
with the separation of Licensee's wholesale and retail operations or to take
advantage of tariff differentials affecting Licensee and its affiliates,
Licensee shall notify Licensor and Licensee shall be entitled to add its
affiliate as a party to this Agreement, provided:
1. Licensee shall not be in default under this License
Agreement.
2. Licensee's affiliate enters into a written
amendment to this License Agreement in which the affiliate agrees to be bound
by all of the terms and conditions of the License Agreement and to be subject
to all of the rights and obligations of the Licensee under the License
Agreement, arising on or after the date of the amendment.
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 twenty (120) days advance
written notice to Licensor.
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 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
-20-
Cellular One
License Agreement
23
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 Cellular Telephone
Service 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 Cellular Telephone
Service business or property; or if any material real or personal property of
Licensee used in its Cellular Telephone Service 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 Cellular Telephone Service
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 for one or more market(s) 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) for which Licensee continues to hold FCC
license(s).
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:
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 Licensor-approved plan during the term of
probation, or, at the end of the term of probation, Licensee fails to meet the
85% customer satisfaction rating (or the higher percentage established by
Licensor under Section IV.A.) required by the Service Standards;
2. If Licensee fails in any customer satisfaction
survey conducted pursuant to Section III.C. (except for the initial advisory
survey) to attain an overall satisfaction rating of at least 65%, 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;
-21-
Cellular One
License Agreement
24
4. If a threat or danger to public health or safety
results from the operation of the Licensee's Cellular Telephone Service
business;
5. If Licensee purports to transfer any rights or
obligations under this License Agreement to any third party, 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 or
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;
8. If Licensee 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 any 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.
Licensee shall be in default hereunder for any failure to comply substantially
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, refuses or neglects promptly to
pay when due any monies owing to Licensor or to the Cellular One Promotional
Fund; or fails, refuses or neglects promptly to submit information as required
under this License Agreement, or makes any false statements in connection
therewith;
-22-
Cellular One
License Agreement
25
2. If Licensee fails to comply, in any material
respect, with the Service Standards;
3. If Licensee misuses or makes any unauthorized use
of the Marks or otherwise materially impairs the goodwill associated therewith
or Licensor's rights therein;
4. If Licensee engages in any business or markets any
service or product under a name or xxxx which, in Licensor's opinion, is
confusingly similar to the Marks; or
5. If Licensee, by act or omission, permits a
continued violation in connection with the operation of its Cellular Telephone
Service business of any 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.
E. Probation
In the event that a customer satisfaction survey, conducted
pursuant to Section III.C., reveals an overall customer satisfaction rating of
less than 85% (or such higher percentage established by Licensor under Section
IV.A.), but more than 65%, Licensor shall advise Licensee of an imposition of
probation status for a stated period of time, typically one year. Promptly on
receipt of this written notice, Licensee agrees to formulate and implement a
plan, acceptable to Licensor, to improve the quality of Licensee's Cellular
Telephone Service so that a subsequent customer satisfaction survey indicates
compliance with the provisions of this License Agreement. The technical
guidelines contained in the Guide to Quality Operations provided to Licensee by
Licensor 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.
F. 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
-23-
Cellular One
License Agreement
26
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 amounts due or owed at the time of such occurrence or payment of license
fees, advertising 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 this Section XI.F. shall promptly notify the other party of
the occurrence and nature of any such cause and shall thereafter regularly
inform the other party of the progress of actions to remedy the inability or
failure to perform hereunder.
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 and permanently cease to
use in the Terminated Market(s), in any manner whatsoever, any of the Marks;
and all other Marks and distinctive forms, slogans, signs, symbols, monograms
and devices associated with the Marks; in particular, Licensee shall cease to
use, without limitation, all signs, advertising materials, displays,
stationery, forms, and any other articles or clothing which display the Marks.
3. 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).
-24-
Cellular One
License Agreement
27
4. Licensee agrees, in the event it continues to
operate a Cellular Telephone Service business in the Terminated Market(s), not
to use any reproduction, counterfeit, copy, or colorable imitation of the
Marks, 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. 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 in the Terminated Market(s).
B. Payment of Monies Due
1. Licensee shall promptly pay all sums owing to
Licensor and the Cellular One Promotional Fund. 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 all documents which contain
Confidential Information of the other as defined in Section VII. hereof.
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
-25-
Cellular One
License Agreement
28
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 in its conduct of its
Cellular Telephone Service business 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, Licensee's operation of its Cellular
Telephone Service business, as well as the costs, including attorney's fees, of
defending against them.
XIV. APPROVALS 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 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 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 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 of any of the terms, provisions or covenants of this
License Agreement affect or impair such party's rights; nor shall
-26-
Cellular One
License Agreement
29
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 or mailed by certified or
registered mail, 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: Executive Director
cc: Xxxxxxx, Xxxxxxxx & Leeds
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Cellular One Group
Notices to Licensee: At the address shown on the signature page
hereof.
Any notice by certified or registered mail shall be deemed to have been
given at the date and time of receipt.
XVI. 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
-27-
Cellular One
License Agreement
30
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.
XVII. 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, 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 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 parts,
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
-28-
Cellular One
License Agreement
31
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.
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
Cellular Telephone Service 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 Cellular
Telephone Service business.
B. Licensee acknowledges that it received a copy of the
complete Cellular One License Agreement and the attachments 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
-29-
Cellular One
License Agreement
32
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.
IN WITNESS WHEREOF, the parties hereto have duly executed this License
Agreement on the day and year first above written.
ATTEST: CELLULAR ONE GROUP
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
-------------------------- -----------------------------------
Title: Executive Director
--------------------------------
Effective Date: April 13, 1993
------------------------
Primary Contact in Ordinary
Course of Business:
Executive Director
-30-
Cellular One
License Agreement
33
ATTEST: LICENSEE: Mercury, Inc.
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
-------------------- ---------------------------------
Xxxxxx Xxxxx
Title: Vice President
-------------------------------
Date of Signature: 4/6/93
Primary Contact in Ordinary Course of
Business:
Xxx Xxxxxxxx, Director of Marketing
--------------------------------------
--------------------------------------
Address for Notice Purposes:
One Lakeshore Drive/P. O. Box 3709
--------------------------------------
Xxxx Xxxxxxx, XX 00000
--------------------------------------
-31-
Cellular One
License Agreement
34
EXHIBIT A
Cellular One License Agreement
The Xxxx(s) currently designated by the Licensor for use hereunder are
as follows:
Registration or
Xxxx Serial Number
---- -------------
Cellular One (shown below) 74/223493
[CELLULARONE LOGO]
-32-
Cellular One
License Agreement
35
EXHIBIT B
Cellular One License Agreement
Licensed Territory
The Market(s) covered by the License Agreement is/are the following:
Market Name MSA/RSA FCC Market No. Recent Population
--------------------------------------------------------------------------------
Mississippi 01 RSA 493 164,324
Total Population 164,324
X .02
-------
3286.48
+500.00
-------
3786.48
-33-
Cellular One
License Agreement
36
EXHIBIT C
Cellular One License Agreement
Survey Methodology
The methodology currently being employed by the Licensor and its
designated Survey Company will be a telephone survey conducted from random
probability samples of cellular customers provided by the Licensee.
Survey samples will be provided to the Survey Company in magnetic tape
or disk medium in a common format as specified by the Partnership. (If the
Licensee is unable to comply, a half-size, high income probability sample will
be ordered at the Licensee's expense).
A random probability sample will be required of the Licensee, sufficient
in number for economic completion of the satisfaction survey. The size of the
completed samples will be between approximately 50 and 200 depending on the
size of the market being surveyed.
-34-
Cellular One
License Agreement
