OPERATING AGREEMENT
THIS OPERATING AGREEMENT (the "Agreement") is dated as of the 16th day of
January, 1998 (the "Effective Date") by and between AT&T Wireless Services,
Inc., on behalf of itself and its Affiliates listed in Schedule 1 hereto
(individually and collectively, "AWS") and Xxxxxx Cellular Systems, Inc., on
behalf of itself and its Affiliates listed in Schedule 2 hereto (individually
and collectively, "Xxxxxx"). AWS and Xxxxxx are sometimes referred to,
individually, as a "Party" and together as "Parties."
RECITAL
WHEREAS, each of AWS and Xxxxxx desires to make arrangements to
facilitate the provision of voice and voice-related mobile wireless
radiotelephone service to its Customers through the wireless radiotelephone
facilities of the other Party in a manner providing a common look and feel and
the appearance of seamlessness between the Parties' facilities, in accordance
with the terms of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein set forth and intending to be legally bound hereby, the Parties do hereby
agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the terms below shall have the following
meanings:
ADDITIONAL FEATURES means the Features that are neither Core Features nor
Future Core Features but that are offered by a Party to its Customers in its
Home Service Area.
ADOPTED FEATURES means the Core Features and the Future Core Features.
AFFILIATE means, with respect to a Party, any facilities-based CMRS
operating company that (a) is controlled by or under common control with the
Party, (b) is an entity in which the Party has at least fifty percent (50%)
voting interest, (c) shares switching facilities with the Party, (d) is managed
by the Party, or (e) is providing Service utilizing CMRS spectrum it has
acquired from a Party.
APPROVED CIBERNET NEGATIVE FILE GUIDELINES means the negative file
guidelines appearing in the CIBER Record in effect from time to time.
AT&T WIRELESS means AT&T Wireless Services, Inc., individually.
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AUTHORIZED RECEIPT POINT or ARP means the location or address of the Party
designated by the Home Carrier as the delivery point for its CIBER records and
authorized agent for performing CIBER edits.
AUTHORIZED ROAMER means a Roamer using equipment and an assigned telephone
number with the NPA/NXX combinations listed in accordance with Article VI below
for whom the Serving Carrier has not received a negative notification in
accordance with the provisions of this Agreement.
AWS has the meaning set forth in the first paragraph of this Agreement.
AWS SYSTEM means the facilities owned and/or operated by AWS with which it
provides Service anywhere within the United States.
BTA means a geographic area designated by the FCC as a Basic Trading Area in
which a PCS System may be operated, as described more specifically in 47 CFR
24.202 of the FCC rules and regulations.
CELLULAR SYSTEM means a wireless communication system that is operated
pursuant to authority granted by the FCC under 47 CFR Part 22.
CIBER means Cellular Intercarrier Billing Exchange Record.
CIBER RECORD means the publication prepared by CIBERNET Corporation, a
wholly-owned subsidiary of the Cellular Telecommunications Industry Association,
as a service to the wireless communications industry. Unless specifically
provided otherwise in this Agreement, all words and phrases defined in the CIBER
Record shall have the meaning herein that they have therein.
CLEARINGHOUSE means that entity which provides for the exchange of CIBER
records and performs industry accepted CIBER edits, including edits to verify
Industry Negative File information.
CMRS means any Commercial Mobile Radio Service as authorized by the FCC.
CORE FEATURES means the Features that, as of the Effective Date, AWS and
Xxxxxx have agreed to implement and maintain in order to create a common look
and feel and seamless subscriber service between the AWS System and the Xxxxxx
System, as evidenced by their listing in Schedule E-1 to Exhibit E attached
hereto.
CUSTOMER means an end-user of Service with which a Party has entered into an
agreement to provide such Service, regardless of whether such Service is to be
provided through the facilities of such Party.
DEFAULT has the meaning set forth in Section 13.1.
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XXXXXX has the meaning set forth in the first paragraph of this Agreement.
XXXXXX SERVICE AREA means the geographic area in which Xxxxxx and those of
its Affiliates now or hereafter listed on Schedule 2 provide Service.
XXXXXX SYSTEM means the facilities owned and/or operated by Xxxxxx with
which it provides Service anywhere within the Xxxxxx Service Area.
XXXXXX TDMA SYSTEM means that portion of the Xxxxxx System located in the
markets listed on Exhibit A.
EFFECTIVE DATE has the meaning set forth in the first paragraph of this
Agreement.
ESN means the Electronic Serial Number that is encoded in a wireless
telephone set by the manufacturer and which is broadcast by such telephone.
EQUIPMENT means phones, handsets, transmitters, terminals, control equipment
and switches and other hardware and software required or useful to use Service,
including phones and handsets Customers use in connection with Service.
FCC means the Federal Communications Commission and any successor agency or
authority.
FEATURES means voice and voice-related features and services available from
a Party through its mobile wireless telecommunication system.
FUTURE CORE FEATURES means the Features that are agreed upon in the future
by the Parties pursuant to Section 10.3.2 as necessary to maintain a common look
and feel, and seamless subscriber service, between the AWS System and the Xxxxxx
System, and which the Parties agree will be supported by both of their Systems,
on the terms and conditions of this Agreement, in the same manner as the Core
Features. Once implemented, a Future Core Feature shall be deemed a Core Feature
for purposes of this Agreement.
GENERAL AVAILABILITY means the date upon which the technology and products
that comprise any Future Core Features are commercially available from the
vendors of such technology and product(s), and such Feature has successfully
completed and passed the first application in the System of the Party seeking to
implement such features and is ready for live commercial deployment.
HOME CARRIER means a Party who is providing Service to its registered
Customers in a geographic area where it holds a license or permit to construct
and operate a mobile wireless radiotelephone system and station.
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HOME SERVICE AREA means the geographic area in which a Home Carrier is
licensed to provide Service.
INDUSTRY NEGATIVE FILE means the negative file maintained by the authorized
Clearinghouses in accordance with approved CIBERNET Negative File Guidelines.
MIN means the "Mobile Identification Number" which is assigned by a Home
Carrier to each of its registered Customers.
MSA means a geographic area designated by the FCC as a Metropolitan Service
Area in which a Cellular System may be operated, as described more specifically
in 47 CFR 22.909 of the FCC rules and regulations.
MTA means a geographic area designated by the FCC as a Major Trading Area in
which a PCS System may be operated, as described more specifically in 47 CFR
24.202 of the FCC rules and regulations.
NPA/NXX COMBINATIONS means the six-digit numerical combinations assigned by
regulatory authorities to identify the area code and telephone number prefix for
Service.
PCS SYSTEM means a wireless communication system that is operated pursuant
to authority granted by the FCC under 47 CFR Part 24.
PARTIES and PARTY have the meanings set forth in the first paragraph of this
Agreement.
ROAMER means a Customer of one Party who seeks Service from the other Party
within the geographic area served by the other Party, regardless of whether
Service also is offered in that area by the Party whose Customer is seeking
Service.
RSA means a geographic area designated by the FCC as a Rural Service Area in
which a Cellular System may be operated, as described more specifically in 47
CFR 22.909 of the FCC rules and regulations.
SERVICE means telecommunications service for the transmission and reception
of voice and voice-related features provided by means of radio frequencies that
are or may be licensed, permitted or authorized now or in the future by the FCC
for use by a Cellular System or a PCS System, and in respect of which service
the user equipment is capable of and intended for usage during routine movement,
including halts at unspecified points, at more than one location throughout a
wide area public or private wireless network. Unless otherwise specifically
agreed by the Parties, Service shall include personal base station services but,
by way of example and without limitation, does not include fixed wireless
services, two-way messaging wireless services (NBPCS), video broadcasting
wireless services, television services (whether cable, broadcast or direct
broadcast satellite), broadcast radio services, interactive informational or
transactional content services such as on-line content network services,
Internet based services, satellite based communications services, and air to
ground communication services.
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SERVING CARRIER means a Party who provides Service for registered
Customers of another Party while such Customers are in the geographic area
where the Serving Carrier, directly or through subsidiaries, provides Service.
SYSTEM means the AWS System or the Xxxxxx System, and SYSTEMS means the AWS
System and the Xxxxxx System.
TDMA means the present and future North American Time Division Multiple
Access standard which is set by the Telecommunications Industry Association
(which at the Effective Date is IS-136), which is the essential radio frequency
technical method for digital wireless telephone operations upon which the
Service and equipment related thereto are designed to operate.
USER INTERFACE means the process, functional commands, and look and feel
by which a Customer operates and utilizes the Adopted Features, including the
sequence and detail of specific commands or service codes, the detailed
operation and response of Equipment to the sequence of keys pressed to effect
subscriber Equipment functions, and the response of subscriber Equipment to
the activation of these keys, or in response to signals or data from either
the Xxxxxx System or the AWS System. Furthermore and for greater certainty,
such definition shall include without limitation, the manner in which
information is displayed on the screen of a phone used for Adopted Features,
announcement tones or messages occur, and service or feature codes that must
be dialed. The origins of the information presented to the user may be the
user Equipment, or the AWS System or the Xxxxxx System, or both.
ARTICLE II.
PROVISION OF SERVICE
2.1 Each Party shall provide, to any Authorized Roamer who so requests, in
accordance with its own ordinary requirements, restrictions, practices, and
tariffs, if applicable, and with the terms and conditions of this Agreement, any
and all types of Service that such Party provides to its own Customers within
its Service Area. At a minimum, such Service shall include voice communications
capability, as well as any other types of Service required by this Agreement,
including without limitation Article X hereof.
2.2 Notwithstanding anything in this Agreement to the contrary, a Serving
Carrier may suspend or terminate Service to an Authorized Roamer in accordance
with the terms of its own ordinary requirements, restrictions, practices, and
tariffs, if any, but such suspension or termination shall not affect the rights
and obligations of the Parties for Service furnished hereunder prior to such
termination or suspension.
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2.3 In connection with its Service to Roamers, no Serving Carrier shall
use recorded announcements or other inducements for an Authorized Roamer to
discontinue the Service of its Home Carrier or, unless otherwise authorized
herein, Roamer's use of a Serving Carrier's system.
2.4 In the event that an operating entity becomes an Affiliate of a Party
after the date of this Agreement, such Party may, upon thirty (30) days prior
written notice to the other Party, add such operating entity to Schedule 1 or
Schedule 2, as the case may be, at the expiration of which thirty-day period,
(a) the Customers of such entity shall be entitled to Service as Roamers from
the other Party on the terms and conditions of this Agreement and (b) such
operating entity shall provide Service to Customers of the other Party who are
Authorized Roamers, although the other Party is not obligated to request such
Service or to require its Customers to request such Service. Notwithstanding the
foregoing, the other Party, in its reasonable discretion, may specify, by
delivering written notice thereof prior to the expiration of the thirty day
period, that any Affiliate so added shall not be entitled to preference as a
Serving Carrier as otherwise provided in Section 2.5.
2.5
2.5.1 AWS, in its capacity as Home Carrier, shall cause
substantially all of its Customers, when roaming in the markets operated by
Xxxxxx that are listed on Exhibit A, to normally seek Service as Roamers from
Xxxxxx prior to seeking Service from any other carrier. Xxxxxx, in its capacity
as Home Carrier, shall cause substantially all of its Customers, when roaming in
the markets operated by AWS that are listed on Exhibit B, to normally seek
Service as Roamers from AWS prior to seeking Service from any other carrier.
2.5.2 As a condition to the right of a Party under Section 2.5.1
to be the preferred provider of Service to Customers of the other Party, the
market being served by the Serving Carrier shall (i) have fully installed a
TDMA-based system, including all Core Features, (ii) be fully interoperable in
accordance with Sections 10.6, 10.7, and 10.8, and (iii) otherwise have met, and
be in compliance with, all terms and conditions of this Agreement.
2.5.3 Upon the addition to or deletion from Schedule 1 or 2 of any
operating entity pursuant to Section 2.4, Exhibits A and B shall automatically
be revised accordingly, except that either Party may, in its sole discretion,
specify that an addition by either Party to Schedule 1 or 2 shall not be given
effect for any or all purposes of this Section 2.5.
2.6 Xxxxxx shall join and remain a member of the North American Cellular
Network throughout the term of this Agreement.
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ARTICLE III.
RELATED SERVICES
3.1 Upon request by Xxxxxx, AWS and Xxxxxx shall consider implementing a
common System Identification Number (SID) for markets operated by the respective
Parties in the same general vicinity or taking other steps to suppress the
roaming indicator on a Customer's handset from lighting to indicate that the
Customer is roaming in such markets, but each Party may, in its sole discretion,
decide whether to implement such measure.
3.2 So long as interexchange services are offered to Xxxxxx and those of
its Affiliates listed in Schedule 2 by AT&T Corp. or one of its Affiliates on
terms that are reasonably competitive with those available through other
sources, Xxxxxx and its Affiliates listed in Schedule 2 shall not market, offer,
provide, or resell interexchange services, except (i) such services offered by
AT&T Corp. or its Affiliate or (ii) services provided exclusively within a
single home service area designated as such by Xxxxxx in its marketing
materials. All relevant factors shall be considered in determining the
competitiveness of interexchange services, including rates, volume commitments,
duration, and other terms. At anytime when Xxxxxx believes that it can obtain
such interexchange services from another source(s) at better terms than those
being offered to Xxxxxx by AT&T Corp. or one of its Affiliates, Xxxxxx may
solicit competing offers. If such offer is made which Xxxxxx believes is better,
and the relevant rates are at least 5% less than those charged to Xxxxxx by AT&T
Corp. or one of it's Affiliates, Xxxxxx shall provide AWS with a written term
sheet which specifies the relevant rates, volume commitments, duration and other
material terms of the competing offer ("Offer Notice"). AT&T Corp. or one of its
Affiliates shall have thirty (30) days after receipt of the Offer Notice by AWS
to offer to Xxxxxx the comparable interexchange service(s) upon the same or
better terms as specified in the Offer Notice. If AT&T Corp. or one of its
Affiliates make such an offer to Xxxxxx, Xxxxxx agrees to contract with AT&T
Corp. or one of its Affiliates for any of such services acquired by Xxxxxx. If
no such offer is made by AT&T Corp. or one of its Affiliates within the required
time period, then Xxxxxx may accept the competing offer. Any claim or dispute
over the interpretation or implementation of this paragraph shall be resolved
under the provisions of paragraph 13.2 of this Agreement.
3.3 AWS and Xxxxxx agree that Xxxxxx shall participate in AWS's National
Account Program ("NAP") on substantially the terms of AWS's standard NAP
agreement, a copy of which has been provided to Xxxxxx. Promptly following the
execution of this Agreement, AWS and Xxxxxx shall negotiate in good faith the
final terms of such agreement, with the goal of executing the agreement by
August 1, 1998.
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3.4 Each Party, within the geographic areas in which such Party provides
Service, will provide Service without any additional toll charge throughout an
area (a so-called "home calling area") that is of a size at least reasonably
comparable to the area within which toll-free calls placed through facilities
that are exclusively land-based are available.
ARTICLE IV.
CUSTOMER SERVICE
4.1 The Parties shall use commercially reasonable efforts to develop and
implement systems enabling each Party, as Serving Carrier, to route to a
Customer's Home Carrier any 611 customer service call received from a Customer
of the other Party while roaming on the Serving Carrier's System.
ARTICLE V.
CHARGES
Each Home Carrier, whose Customers (including the Customers of its
resellers) receive service from a Serving Carrier as Authorized Roamers under
this Agreement, shall pay to the Serving Carrier who provided such service 100%
of the Serving Carrier's charges for CMRS and one hundred percent (100%) of the
toll charges pursuant to Exhibit C. The amount of the charges for the use of
each Serving Carrier's Service are set forth in Exhibit C attached to this
Agreement.
ARTICLE VI.
EXCHANGE OF INFORMATION
6.1 The Parties shall furnish to each other, in the format of Exhibit D
to this Agreement, the valid NPA/NXX combinations used by their respective
Customers. These combinations shall be accepted by the other Party. Each
NPA/NXX combination is and shall be within the entire line range (0000-9999),
or a specified portion thereof. The minimum line range to be exchanged by the
Parties shall be 1,000 line numbers. Each Party shall be responsible for all
xxxxxxxx otherwise properly made under this Agreement to any number listed by
such Party within the range or ranges specified by it in Exhibit D.
Additions, deletions, or changes to NPA/NXX combinations and line number
range(s) for the Home Carrier's Customers may be made upon at least fifteen
(15) days prior written notice to the Serving Carrier. Such notice shall be
in the form attached as Exhibit D to this Agreement and shall include the
requested effective date for the addition, deletion or change.
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6.2 Each Party shall provide to the other Party a list of MINs (from among
those within the NPA/NXX combination(s) identified pursuant to Section 6.1
hereof) and ESNs (of the telephones to which the other Party is not authorized
to provide Service pursuant to this Agreement), which shall be entered into the
Industry Negative File. The approved CIBERNET Negative File Guidelines, as
amended from time to time, shall be the governing criteria for the Parties.
Thereafter, from time to time, as agreed by the Parties, each Party shall notify
each other Party of all additions to, and deletions from, these lists for the
Customers of that particular Party. Such notifications shall be made during
normal business hours of the Party being notified by facsimile or by telephone
with a written confirmation and shall be effective one (1) hour after receipt.
6.3 Each Party hereby agrees to indemnify the other Party, together with
its partners and any and all of their officers, directors, employees, agents
and/or affiliates, against, and hold them harmless from, any and all claims,
suits, demands, losses and expenses, including reasonable attorneys' fees and
disbursements, which may result in any way whatsoever from the indemnified
Party's denial of Roamer or local Service to any NPA/NXX and MIN combination
which has been listed by the indemnifying Party as not being authorized to
receive Service; provided that (i) the person seeking indemnification (the
"Indemnified Person") provides notice of such claim promptly after its discovery
to the Party from which indemnification is sought (the "Indemnifying Person")
and in any event the Indemnifying Person will be released from any obligation
hereunder to the extent it is prejudiced by any delay in the delivery of such
notice, (ii) the Indemnifying Person shall have the right to assume the defense
of such claim, (iii) the Indemnified Person shall provide such reasonable
assistance and cooperation in the defense of such claim as is requested by the
Indemnifying Person, and (iv) the Indemnified Person shall not settle or
compromise any such claim without the prior written consent of the Indemnifying
Person.
6.4 Each Party, due to system limitations, may purge or delete numbers of
its Customers from the lists as referred to in Section 6.2 hereof, but in all
such cases, such purging or deletion must be done in accordance with the
approved CIBERNET Negative File Guidelines. If purging or deletion of numbers is
done prior to the time periods established by such Guidelines, or through
procedures not otherwise set forth, in the approved CIBERNET Negative File
Guidelines, the Party implementing the purge or deletion will assume financial
liability for any charges incurred by those numbers. All purges or deletions
made pursuant to this Section 6.4 shall be given through the Parties and shall
be in the form mutually agreed upon by the Parties and effective as of the time
established by the approved CIBERNET Negative File Guidelines (unless otherwise
modified by mutual agreement of the Parties.)
6.5 Upon the implementation of wireless number portability in any portion
of either the AWS System or the Xxxxxx System, the Parties shall cooperate in
establishing an alternative method for exchanging ESN, MIN, and NPA/NXX
information required to permit roaming by the other Party's Customers in their
respective systems.
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ARTICLE VII.
FRAUD
7.1 The Parties will cooperate and, as necessary, supplement this
Agreement in order to minimize fraudulent or other unauthorized use of their
systems. If any Party reasonably decides that, in its sole judgment, despite due
diligence and cooperation pursuant to the preceding sentence, fraudulent or
other unauthorized use has reached an unacceptable level of financial loss and
is not readily remediable, such Party may suspend the use of applicable NPA/NXX
combinations, in whole or in part, pursuant to the terms of this Agreement.
7.2 Each Party shall take reasonable actions to control fraudulent Roamer
usage, including without limitation using either (i) a positive
validation/verification ("PV") system provided by a mutually agreed upon
validation/verification service under which the ESN, MIN and/or NPA/NXX used in
a call in the Serving Carrier's system is compared against a list of Authorized
Roamers or (ii) SS-7 connections through a network of carriers. The Parties
shall work together in good faith to designate and implement a system as
specified in the preceding sentence and enhancements thereto or alternative
systems as they shall agree in the future. The Home Carrier shall have no
responsibility or liability for calls completed by a Serving Carrier without
obtaining positive validation/verification as required herein.
7.3 In addition to other procedures set forth in this Agreement, a Home
Carrier may notify a Serving Carrier by facsimile, with written confirmation,
that certain NPA/NXX combinations are not to receive Service. Any calls
completed using such NPA/NXX combinations made one full business day or more
after such notice has been given shall be the sole responsibility of the Serving
Carrier, and the Home Carrier shall not be charged any amount for such calls.
7.4 Each Serving Carrier shall use commercially reasonable efforts to
provide each Home Carrier with real-time visibility of call detail records
delivered through a network compatible with AWS's network. Such information
shall be delivered within one hour of the applicable call. In the event that the
Serving Carrier provides such a real-time visibility system, the Serving Carrier
shall not be liable in any event for a temporary failure of the system unless
the Serving Carrier has been notified of such failure by the Home Carrier and
the Serving Carrier does not take commercially reasonable steps to remedy the
failure. If the Serving Carrier has been so notified and has failed to take such
commercially reasonable steps, the Serving Carrier shall be liable for all
unauthorized usage attributed to Home Carrier's subscribers during the period
from the time Serving Carrier was notified of the problem to the time that the
problem has been resolved to the reasonable satisfaction of the Home Carrier.
7.5 For purposes of notification under this Article VII, the following
addresses and facsimile numbers shall be used:
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If to AWS: AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Billing and ICS Operations
Tel. No. 000-000-0000
Fax No. 000-000-0000
If to Xxxxxx: Xxxxxx Communications Corp.
Xxxxxx Communications Corp.
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX
Attn: Xxxx Xxxxxx
Tel. No. 000-000-0000
Fax No. 000-000-0000
Each Party may change the names, addresses and numbers set forth above by
providing notice to the other Party as provided in Article XVI below.
ARTICLE VIII.
BILLING
8.1 Each Home Carrier shall be responsible for billing to, and collecting
from, its own Customers all charges that are incurred by such Customers as a
result of service provided to them as Authorized Roamers by the Serving Carrier.
The Home Carrier shall also be responsible for billing its Customers for, and
remitting to, the Federal Government all federal excise tax that may be due in
connection with the service being billed by it to its Customers. While the
Serving Carrier will be responsible for the computation and remittance of all
state and local taxes, each Home Carrier shall be liable to the Serving Carrier
for all such state and local taxes remitted by the Serving Carrier, for
Authorized Roamers regardless of whether these amounts are paid to the Home
Carrier by its Customers.
8.2 Each Serving Carrier who provides Service to an Authorized Roamer
pursuant to this Agreement shall forward Roamer billing information, within five
business days of the call date, in accordance with the procedures and standards
set forth in the CIBER Record to the Home Carrier's Authorized Receipt Point.
CIBER Type 50 and CIBER Type 70 records shall not be accepted without mutual
signed agreement and if such mutual agreement is reached it will be attached to
this Agreement. Any future revisions of the CIBER Record or additional record
types must be mutually agreed upon before implementation. In the event the
parties use the CIBERNET Net Settlement Program, or alternative settlement
program such information must be in a format in compliance with the CIBER Record
requirements or agreed upon format.
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8.3 Where the Authorized Roamer billing information required to be
provided by the Serving Carrier in accordance with Section 8.2 above is not in
accordance with the CIBER Record, the Home Carrier may return a record to the
Serving Carrier as provided in the CIBER Record. Returning the defective record
will be in accordance with CIBER Record established procedures. The Serving
Carrier may correct the defective record and return it to the Home Carrier for
billing, provided that the time period from the date of the Service call at
issue to the receipt of the corrected record does not exceed sixty (60) days.
8.4 No credit for insufficient data or defective records shall be
permitted except as provided in Section 8.3 above, unless mutually agreed upon
by both Parties.
8.5 Each Home Carrier may at its discretion perform any necessary edits at
its Clearinghouse on incollect or outcollect call records to ensure compliance
with the terms of this Agreement.
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ARTICLE IX.
SETTLEMENT
9.1 Each Party will settle its accounts with the other Parties on the
basis of billing information received as described in this Article IX. In the
event both Parties use a net financial settlement procedure, the Parties shall
not submit a paper invoice but will make payments in accordance with such net
financial settlement procedures provided that the Parties may submit call
records for payment that relate to calls made more than sixty (60) days from the
date of the call if such call was the subject of a dispute or investigation
regarding fraudulent or unauthorized use.
9.2 If an incorrect roaming rate is charged by the Serving Carrier to the
Home Carrier, the Serving Carrier shall refund all amounts in excess of the
contract rate back to the Home Carrier within forty five days of notification by
the Home Carrier. Each carrier shall have ninety (90) days from the end of the
settlement period to invoice for amounts in excess of the contract rate. The
Home Carrier will send a collection letter within sixty (60) days of the invoice
date, within ninety (90) days of the invoice date, and within one hundred (120)
days of the invoice date. If the invoice remains unpaid after one hundred twenty
(120) days from the original invoice date, the Home Carrier may withhold the
amounts from the CIBERNET Net Settlement Program or alternative settlement
program.
9.3 In the event that either Party does not use a net financial settlement
procedure, the billing and payment for charges incurred under this Agreement
shall be as set forth below.
9.3.1 The parties shall determine amounts owed to each other for
Service provided to Roamers in one-month periods with such period beginning on
the sixteenth day of each calendar month and ending on the fifteenth day of the
following month in which Service is provided. The end of this Period shall be
referred to as "Close of Billing."
9.3.2 The Parties shall send each other an invoice for Services
used under this Agreement within fifteen (15) days after the Close of Billing.
9.3.3 Each invoice shall contain the following information.
a. Billing period used by Serving Carrier
b. Batch sequence number
c. Serving and Home Carrier System Identification Number
d. Air Service charges
e. Total toll charges (both intrastate and interstate)
f. All other charges and credits
g. Total taxes
h. Total charges
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9.3.4 Payment on such invoices shall be made in the form of a
check or a wire transfer which must be received by the invoicing party within
thirty (30) days from the date of the invoice. Late payments shall be charged
with a late payment fee of one and one half percent (1.5%) of the outstanding
balance for each thirty-day period (or portion thereof) that such payments are
late.
9.3.5 Each Party may offset the amount owed to the other Party
under this Agreement and a single payment of the balance to the Party entitled
to receive such balance shall be made.
9.4 If the Serving Carrier provides pre-call validation of the Home
Carrier's Customers, the Home Carrier agrees to implement Negative File
Suppression at the Clearinghouse and the CIBERNET Negative File Guidelines and
procedures do not apply.
ARTICLE X.
INTEROPERABILITY
10.1 The Parties agree that their respective obligations under this
Agreement related to the interoperability of the AWS System and the Xxxxxx TDMA
System shall be construed in accordance with the following general principles:
10.1.1 The Parties agree, confirm and acknowledge that one of their
primary objectives in entering into this Agreement is to promote the
establishment and operation throughout the United States of a mobile wireless
service that is TDMA-based and that will appear to their respective subscribers
as a single mobile wireless network with a common User Interface pertaining to
the Adopted Features, and that they intend to achieve such purpose and objective
as set forth in, and subject to the terms and conditions of, this Agreement.
Core Features and Future Core Features, once implemented, shall be made
available to all Customer's of a Party when roaming in the AWS System or the
Xxxxxx TDMA System, subject to the terms of this Agreement. Each Party shall use
good faith efforts, when implementing any software or other System change or
upgrade, to confirm the continued availability of the Feature interoperability
provided for herein, and in the event of any interference with any Feature
interoperability shall work expeditiously to restore required functionality.
Without limiting the generality of the foregoing, in the event the
Authentication Fraud Protection Feature (or any subsequent or comparable fraud
protection Feature) is disabled or affected by any network change so as to
interfere with its interoperability, the Party responsible for such network
shall restore interoperability within 48 hours of notification from the affected
Party.
10.1.2 The Parties agree that each of their respective obligations,
duties, rights and entitlements pursuant to this Agreement shall be interpreted,
to the extent such interpretation is required to resolve any dispute or
uncertainty concerning this Agreement, in a manner that is reasonably consistent
with, and which reasonably supports, the purpose and objective of this Agreement
as set out in Section 10.1.1.
14
10.1.3 The Parties agree that they each shall, in good faith, work
together, cooperate, and use the rights that they each have granted the other
under this Agreement for the purposes set out in Section 10.1.1 and on the terms
and conditions of this Agreement.
10.1.4 Any entity listed on Schedule 1 but in which AT&T Wireless
owns, directly or indirectly, less than a majority interest or which AT&T
Wireless otherwise does not control shall, at the option of AT&T Wireless, not
be subject to the requirements of this Article X.
10.2 The Parties agree to implement TDMA-based systems as follows:
10.2.1 The Parties each acknowledge and confirm that their digital
standard for, in the case of AWS, the AWS System and, in the case of Xxxxxx, the
Xxxxxx TDMA System, is currently (as of the Effective Date) TDMA. In addition,
Xxxxxx shall maintain its commitment to TDMA as Xxxxxx'x digital standard for
the Xxxxxx TDMA System on Exhibit A for so long as, and to the extent that, AWS
maintains its commitment to TDMA as AWS's digital standard. AWS agrees that in
the event it may exercise its discretion to no longer remain committed to TDMA
as its digital standard, it shall inform Xxxxxx of that decision by no later
than six months prior to the implementation of any non-compatible interface.
Upon the implementation of any such non-compatible interface, the following
Sections of this Agreement shall immediately terminate: Sections 10.1.1, 10.2.2,
and 10.2.3.
10.2.2 Xxxxxx shall deploy TDMA throughout the Xxxxxx TDMA System
within twelve (12) months after the date of this Agreement. Xxxxxx shall use
commercially reasonable efforts to promote the use of TDMA-based communications
devices among its Customers who roam on the AWS System.
10.2.3 Notwithstanding any other provision of this Section 10.2,
the Parties acknowledge that certain outlying portions of their respective
service areas may receive only digital control channels and not digital voice
service.
10.3 Each of the Parties agrees that it shall operate and support its
TDMA-based System, to the extent installed, to ensure that the other Party's
Customers can use the Adopted Features when roaming on the Serving Carrier's
TDMA-based System in the same manner that such Customers use such Adopted
Features on the Home Carrier's TDMA-based System.
10.3.1 Each Party shall, at its own expense, implement the Core
Features in the AWS System, in the case of AWS, and in the Xxxxxx TDMA System,
in the case of Xxxxxx, within one (1) year after the Effective Date. Thereafter,
Core Features shall be implemented at the time any TDMA-based system is placed
into operation.
15
10.3.2 The Future Core Features shall be those features that are
agreed upon by the Parties from time to time after the execution of this
Agreement. Each Party shall, at its own expense, implement such Future Core
Features within one (1) year after the General Availability of such Future Core
Features, provided that, and subject to such Party's determination, in its sole
and absolute discretion, that such implementation is both financially feasible
and economically viable, and consistent with such Party's objective of
maximizing its financial performance. In the event that a Party opts not to
adopt a Future Core Feature in accordance with this Section 10.3.1, it shall
promptly notify the other Party of that decision. Future Core Features shall be
implemented in accordance with this Section in the areas specified for each
respective Party in Section 10.3.1.
10.3.3 Each Party shall have the right, in its sole discretion to
adopt and implement (at such Party's own expense) Additional Features, but the
other Party shall have no obligation to support any Additional Features.
10.3.4 The Parties shall use commercially reasonable efforts to
comply with the network Standards with respect to the Core Features and Future
Core Features that are set out in Schedule E-2 to Exhibit E attached hereto. The
sole remedies available to a Party (the "Affected Party") for the failure by the
other Party to comply with this Section 10.3.4 shall be (a) to suspend, for so
long as such noncompliance continues in effect, the Affected Party's obligation
under Section 2.5 to treat the other Party as the preferred provider of roaming
services in the market(s) in which such noncompliance arises and (b) in the
event such noncompliance continues for ninety (90) days or more, to permanently
terminate such preferred provider status in such market(s). This limitation of
remedies shall not limit in any way the remedies available to a Party for
noncompliance by the other Party with any other provision of this Agreement,
whether or not such noncompliance is a result of the same circumstances that
result in noncompliance with this Section.
10.4 Neither Party shall provide the other Party's Customers with Service
inferior in quality to that provided to its own Customers. Each Party shall
provide Service to Customers of the other Party of a quality level, based on
criteria customarily used to evaluate the performance of wireless voice systems,
comparable to or exceeding industry norms. Any assessment of "quality" shall be
with reference to the System's performance as a whole within a specific MSA,
RSA, or BTA, as the case may be, and shall be over such a period of time as
reasonably necessary to yield an accurate depiction of System "quality" taking
into account all of the variables which may affect System performance.
10.5 In order to facilitate performance by each of the Parties of their
obligations under this Article X, the Parties agree to exchange and share
information with each other as follows, except that nothing contained herein
shall be construed to require a Party to exchange information that the Party
considers confidential or proprietary.
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10.5.1 Subject to Article XVII of this Agreement, the Parties shall
provide each other, on a reasonably prompt basis, with all information and
materials that either has a right to disclose that is necessary to meet the
interoperability standards set forth in this Article X, including without
limitation the following information:
System Engineering:
- Minimum Standards for Systems
Features:
- Capability description of present Core Features and other
Features
- User Interface (codes)
- Implementation procedures
- Roaming requirements
- Feature functionality design documents
Research and Development
- operational test results
- operational defects and bugs
- remedial/back-up plans
- operational, functional and technical specifications
- all related documentation
- systems integration
10.5.2 Each Party agrees that it shall, in performing its
obligations to provide the other Party with information in accordance with
Section 10.5, act reasonably, and in good faith toward the other Party.
10.5.3 Nothing contained herein is intended or should be construed
to constitute the transfer or grant by one Party to the other of any ownership,
license, or other rights of or to any trade secret, know-how, or other
intellectual property by one Party to the other.
10.6 Each Party shall provide for automatic call delivery for Customers of
the other Party who are Roamers in such Party's system. To this end, each Party
shall continuously provide the hardware, software and transmission facilities
required for such call delivery either directly between the systems of the
Parties or indirectly through a separate network of wireless communications
carriers. The hardware, software and transmission facilities provided by each
Party hereunder shall at all times be operated and maintained to provide the
most efficient level of service that is technically feasible and commercially
reasonable to minimize transmission errors and Service interruptions.
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10.7 If the Parties have implemented linking facilities as contemplated
in Section 10.8, the Serving Carrier shall automatically hand-off to the Home
Carrier, and as requested shall automatically accept hand-off from the Home
Carrier in order to provide Service as specified in Article II, calls to or
from a Customer of the Home Carrier in accordance with the hand-off
procedures established for such linking facilities. To this end, each Party
shall continuously provide the hardware, software and transmission facilities
required for such call hand-off either directly between the systems of such
Home and Serving Carrier or indirectly through a separate network of wireless
communications carriers. The hardware, software and transmission facilities
provided by each Party hereunder shall at all times be operated and
maintained to provide the most efficient level of service that is technically
feasible and commercially reasonable to minimize transmission errors and
Service interruption.
10.8 The Parties will work together to evaluate the economic advantage of
various switch linking options to interconnect and facilitate networking of the
Parties' respective Systems as required by this Agreement. Should the Parties
agree to install and maintain linking facilities, the cost of the linking
facilities shall be allocated pursuant to the following provisions:
10.8.1 AWS and Xxxxxx will each pay one-half of the equipment costs
for the establishment of microwave facilities to link the Parties' respective
Systems for the purposes of automatic call delivery and automatic call hand-off.
Each Party is solely responsible for the costs of preparing its own facilities
for the System link.
10.8.2 Equipment costs for the establishment of a landline link
(T-1) to link the Parties' respective Systems together for these purposes shall
be split between the Parties as follows:
(a) AWS and Xxxxxx shall each pay one-half of the cost for
the installation, use, modification, or discontinuance of the linking
facilities. Each party is solely responsible for all costs to prepare its own
facilities for the link between the Systems.
(b) For ease of administration, AWS will order and be the
customer of record ("COR") for such facilities. Xxxxxx will reimburse AWS
monthly for its share of the recurring costs of such facilities. The COR shall
be responsible for invoicing the other Party for its share of the costs, with
payment due within 30 days of receipt of the invoice.
10.8.3 The Parties agree that this Section 10.8 relates only to
those costs necessary to establish the referenced facilities. This section is
not applicable to the allocation of costs with respect to the provision of
service for each Parties Customers.
10.9 The Parties acknowledge that they do not currently have the
technical systems in place to allocate charges for cellular service provided
by a Carrier when a Customer's call is handed off from one System to another.
The Parties agree that the revenues and costs for a call belong to the Party
whose System operates the originating cell site (the "Xxxx and Keep System").
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ARTICLE XI.
REPRESENTATIONS AND WARRANTIES
11.1 AWS hereby represents and warrants to Xxxxxx that:
11.1.1 AT&T Wireless is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware. AT&T
Wireless has all requisite power and authority to execute and deliver this
Agreement and to cause this Agreement to be the binding obligation, to the
extent provided herein, of those of its Affiliates listed on Schedule 1 or added
to Schedule 1 hereafter in accordance with Section 2.4.
11.1.2 This Agreement is the legal, valid, and binding obligation
of AT&T Wireless, enforceable against AT&T Wireless in accordance with its
terms, except that such enforceability may be subject to (a) bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or hereafter
in effect relating to creditors' rights generally and (b) equitable principles
of law and the discretion of any court or arbitral body before which any related
proceeding may be brought.
11.1.3 The execution, delivery, and performance of this Agreement
by AT&T Wireless does not and will not conflict with or result in a material
default, suspension, or termination of any agreement, contract, obligation,
license, or authorization with or granted by any third party or governmental
body.
11.2 Xxxxxx hereby represents and warrants to AWS that:
11.2.1 Xxxxxx is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Oklahoma. Xxxxxx has all
requisite power and authority to execute and deliver this Agreement and to cause
this Agreement to be the binding obligation, to the extent provided herein, of
those of its Affiliates listed on Schedule 2 or added to Schedule 2 hereafter in
accordance with Section 2.4.
11.2.2 This Agreement is the legal, valid, and binding obligation
of Xxxxxx, enforceable against Xxxxxx in accordance with its terms, except that
such enforceability may be subject to (a) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in effect
relating to creditors' rights generally and (b) equitable principles of law and
the discretion of any court or arbitral body before which any related proceeding
may be brought.
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11.2.3 The execution, delivery, and performance of this Agreement
by Xxxxxx does not and will not conflict with or result in a material default,
suspension, or termination of any agreement, contract, obligation, license, or
authorization with or granted by any third party or governmental body.
ARTICLE XII.
TERM, TERMINATION AND SUSPENSION OF AGREEMENT
12.1 This Agreement shall have a term commencing on the Effective Date and
continuing for a period of five (5) years. Thereafter, this Agreement shall
continue in force on a month-to-month basis unless either party terminates the
Agreement by written notice to the other party given at least 90 days prior to
the date of termination. Otherwise, this Agreement may be terminated or
suspended only as provided in this Article XII.
12.2 This Agreement may be terminated or suspended by either Party
immediately upon written notice to the other of a Default (as defined in Section
13.1) by the other Party. In addition, either Party may suspend this Agreement
immediately upon written notice to the other Party pursuant to Section 13.1.1 of
the existence of a breach of this Agreement, whether or not such breach
constitutes a Default, which materially affects the Service being provided to
Customers of the non-breaching Party. While any suspension of this Agreement,
whether in part or in whole, is in effect, the obligations of the Parties shall
be only those that survive termination and to work together to resolve as
expeditiously as possible any difficulty that resulted in a suspension. At such
time as the Party originally giving notice of suspension concludes that the
problem causing the suspension has been resolved, that Party shall give to the
other written notice to this effect. This Agreement shall resume in full effect
within five (5) business days after the Parties have mutually agreed that the
problem has been resolved.
12.3 The Parties shall cooperate to limit the extent and effect of any
suspension of this Agreement to what is reasonably required to address only the
cause of such suspension.
12.4 In the event that a Party transfers control of an Affiliate listed in
Schedule 1 or Schedule 2, as the case may be, the Party shall provide at least
four months' prior written notice to the other Party and upon such transfer such
Affiliate shall be deleted from the appropriate Schedule, but doing so will not
relieve a Party of its obligations under Section 14.1.
12.5 The termination or suspension of this Agreement shall not affect the
rights and liabilities of the Parties under this Agreement with respect to all
Authorized Roamer charges incurred prior to the effective date of such
termination or suspension.
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ARTICLE XIII.
DEFAULT
13.1 A Party will be in "Default" under this Agreement upon the occurrence
of any of the following events:
13.1.1 Material breach of any material term of this Agreement, if
such breach shall continue for thirty (30) days after receipt of written notice
thereof from the nonbreaching Party;
13.1.2 Voluntary liquidation or dissolution or the approval by
the management, board of directors, stockholders, or owners of a Party of any
plan or arrangement for the voluntary liquidation or dissolution of the Party;
13.1.3 A final order by the FCC revoking or denying renewal of CMRS
licenses or permits granted to such Party which, individually or in the
aggregate, are material to the business of such Party; or
13.1.4 Such Party (i) filing pursuant to a statute of the United
States or of any state, a petition for bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee for all or a
portion of such Party's property, (ii) has filed against it, pursuant to a
statute of the United States or of any state, a petition for bankruptcy or
insolvency or for reorganization or for the appointment of a receiver or trustee
for all or a portion of such Party's property, provided that within sixty (60)
days after the filing of any such petition such Party fails to obtain a
discharge thereof, or (iii) making an assignment for the benefit of creditors or
petitioning for, or voluntarily entering into, an arrangement of similar nature,
and provided that such filing, petition, or appointment is still continuing.
13.2 All claims and disputes relating in any way to the performance,
interpretation, validity, or breach of this Agreement, including but not limited
to a claim based on or arising from an alleged tort, shall be resolved as
provided in this Section 13.2. It is the intent of the Parties that any
disagreements be resolved amicably to the greatest extent possible.
13.2.1 If a disagreement cannot be resolved by the representatives
of the Parties with day-to-day responsibility for this Agreement, such matter
shall be referred to an executive officer of each of the Parties. The executive
officers shall conduct face-to-face negotiations at a neutral location or such
other location as shall be mutually agreed upon. If these representatives are
unable to resolve the dispute within ten business days after either Party
requests the involvement of the executive officers, then either Party may, but
is not required to, refer the matter to mediation or arbitration, as applicable
in accordance with Sections 13.2.2 and 13.2.3.
13.2.2 In any case where the amount claimed or at issue is One
Million Dollars ($1,000,000) or more and the Parties are unsuccessful in
resolving the disagreement, the Parties
21
agree to submit the disagreement to non-binding mediation upon written
notification by either Party. The Parties shall mutually select an independent
mediator experienced in telecommunications system disputes. The specific format
for the mediation shall be left to the discretion of the mediator. If mediation
does not result in resolution of the disagreement within thirty days of the
initial request for mediation, then either Party may, but is not required to,
refer the matter to arbitration.
13.2.3 Any disagreement not finally resolved in accordance with the
foregoing provisions of this Section 13.2 shall, upon written notice by either
Party to the other, be resolved by final and binding arbitration. Subject to
this Section 13.2.3, such arbitration shall be conducted through, and in
accordance with the rules of, JAMS/Endispute. A single neutral arbitrator shall
decide all disputes. Each Party shall bear its own expenses with respect to the
arbitration, except that the costs of arbitration proceeding itself, including
the fees and expenses of the arbitrator, shall be shared equally by the Parties.
The arbitration shall take place in a neutral location selected by the
arbitrator. The arbitrator may permit discovery to the full extent permitted by
the Federal Rules of Civil Procedure or to such lesser extent as the arbitrator
determines is reasonable. The arbitrator shall be bound by and strictly enforce
the terms of this Agreement. The arbitrator shall make a good faith effort to
apply applicable law, but an arbitration decision and award shall not be subject
to review because of errors of law. The arbitrator shall have the sole authority
to resolve issues of the arbitrability of any disagreement, including the
applicability or running of any applicable statute of limitation. The arbitrator
shall not have power to award damages in connection with any dispute in excess
of actual compensatory damages nor to award punitive damages nor any damages
that are excluded under this Agreement and each party irrevocably waives any
claim thereto. The award of any arbitration shall be final, conclusive and
binding on the Parties. Judgment on the award may be entered in any court having
jurisdiction over the Party against which the award was made. Nothing contained
in this Section 13.2.3 shall be deemed to prevent either party from seeking any
interim equitable relief; such as a preliminary injunction or temporary
restraining order, pending the results of the arbitration. The United States
Arbitration Act and federal arbitration law shall govern the interpretation,
enforcement, and proceedings pursuant to the arbitration clause in this
Agreement.
ARTICLE XIV.
SUCCESSORS AND ASSIGNS
14.1 Neither Party may, directly or indirectly, sell, assign, transfer, or
convey its interest in this Agreement or any of its rights or obligations
hereunder, including any assignment or transfer occurring by operation of law,
without the written consent of both Parties, except that (i) either Party may
assign or delegate this Agreement or any of its rights or obligations hereunder
to an Affiliate of such Party without the consent of the other Party, but such
assignment or delegation will not relieve the Party of any of its obligations
hereunder and (ii) a Party may assign its rights and obligations hereunder to an
assignee of its Service license or permit issued by the FCC, provide that such
assignee expressly assumes, by written instrument
22
approved in writing by the other Party, all of the obligations of such Party
hereunder and thereby becomes a Party hereunder. In no event will an assignment
permitted under this Section 14.1 without the consent of the other Party
obligate a Serving Carrier to provide Service to Customers of the assignee or
any of its Affiliates other than Customers residing in the area in which the
assignor previously was licensed to provide Service.
14.2 No person other than a Party to this Agreement shall acquire any
rights hereunder as a third-party beneficiary or otherwise by virtue of this
Agreement.
ARTICLE XV.
NO PARTNERSHIP OR AGENCY RELATIONSHIP IS CREATED
Nothing contained in this Agreement shall constitute the Parties as partners
with one another or render any Party liable for any debts or obligations of any
other Party, nor shall any Party hereby be constituted the agent of the other
Party.
ARTICLE XVI.
NOTICES AND AUTHORIZED REPRESENTATIVES
Unless otherwise provided herein, any notice, request, instruction or other
document to be given hereunder by any Party to the other shall be in writing and
delivered by hand delivery, certified mail (postage prepaid, return receipt
requested), facsimile, or overnight air delivery service, as follows:
If to AWS, to: AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Intercarrier Services
with a copy to: AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Legal Department
If to Xxxxxx, to: Xxxxxx Cellular Systems, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
23
or such other address as any Party may from time to time furnish to the other
Party by a notice given in accordance with the terms of this Section. All such
notices and communications shall be deemed to have been duly given at the time
delivered by hand, if personally delivered; three business days after being
deposited in the mail, if mailed; when receipt is confirmed, if by facsimile and
received by 3:00 p.m. local time on any business day and otherwise on the next
business day; and the next business day if sent by overnight air delivery
service.
ARTICLE XVII.
CONFIDENTIALITY
17.1 Each Party shall, and shall cause each of its Affiliates and each of
its and their employees, agents, and contractors, to keep confidential and not
use for any purpose except as contemplated by this Agreement, any and all
information and know-how provided to it by the other Party which is identified
in writing as confidential ("Confidential Information"). Identification of
information as confidential shall, in the case of information delivered in
tangible form, appear on at least the face or first page of such information
and, in the case of information communicated verbally, be given verbally
contemporaneously with the delivery of the information and confirmed in writing
within five business days thereafter. Notwithstanding the foregoing, the
following information shall be treated as Confidential Information without any
further identification as such: (i) The terms, but not including the mere
existence, of this Agreement; and (ii) all information exchanged pursuant to
Article VI.
17.2 Notwithstanding Section 17.1, a Party shall have no obligation to keep
confidential any information that (a) was rightly in the receiving Party's
possession before receipt from the disclosing Party, (b) is or becomes a matter
of public knowledge without violation of this Agreement by the receiving Party,
(c) is rightfully received by the receiving Party from a third party rightfully
in possession of and, to the best of the receiving Party's knowledge, with a
right to make an unrestricted disclosure of such information, (d) is disclosed
by the disclosing Party to a third party without imposing a duty of
confidentiality on the third party, or (e) is independently developed by the
receiving Party without the use of any Confidential Information. In addition, a
Party may disclose any Confidential Information to the extent required by
applicable law or regulation or by order of a court or governmental agency;
provided, that prior to disclosure the Party shall use all reasonable efforts to
notify the other Party of such pending disclosure and shall provide any
reasonable assistance requested by the other Party to maintain the
confidentiality of the information.
17.3 The Parties agree that a Party will not have an adequate remedy at law
in the event of a disclosure or threatened disclosure of Confidential
Information in violation of this Article XVII. Accordingly, in such event, in
addition to any other remedies available at law or in equity, a Party shall be
entitled to specific enforcement of this Article XVII and to other injunctive
and equitable remedies against such breach without the posting of any bond.
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17.4 The obligations under this Article XVII shall survive the termination
of this Agreement for a period of three years.
ARTICLE XVIII.
MISCELLANEOUS
18.1 The Parties agree to comply with, conform to, and abide by all
applicable and valid laws, regulations, rules and orders of all governmental
agencies and authorities, and agree that this Agreement is subject to such laws,
regulations, rules and orders. All references in this Agreement to such laws,
regulations, rules and orders include any successor provision. If any amendment
to or replacement of the same materially alters the benefits, rights, and duties
of the Parties hereunder, the Parties agree to negotiate in good faith an
amendment to this Agreement to restore the respective positions of the Parties
to substantially the same point as existed prior to such amendment or
replacement.
18.2 The Parties agree to use their respective best, diligent, and good
faith efforts to fulfill all of their obligations under this Agreement. The
Parties recognize, however, that to effectuate all the purposes of this
Agreement, it may be necessary either to enter into future agreements or to
amend this Agreement, or both. In that event, the Parties agree to negotiate
with each other in good faith.
18.3 This Agreement constitutes the full and complete agreement of the
Parties with respect to the subject matter hereof. Any prior agreements among
the Parties with respect to this subject matter, including without limitation
the Intercarrier Services Agreements dated as of October 16, 1991 and June 16,
1997, are hereby superseded. This Agreement may not be amended, except by the
written consent of the Parties. Waiver of any breach of any provision of the
Agreement must be in writing signed by the Party waiving such breach or
provision and such waiver shall not be deemed to be a waiver of any preceding or
succeeding breach of the same or any other provision. The failure of a Party to
insist upon strict performance of any provision of this Agreement or any
obligation under this Agreement shall not be a waiver of such Party's right to
demand strict compliance therewith in the future.
18.4 The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret, define or limit
the scope, extent or intent of this Agreement or any provision thereof.
18.5 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Agreement.
18.6 This Agreement shall be construed in accordance with the internal laws
of the State of Delaware without reference to the choice of law principles,
except as subject to the United States Arbitration Act and the Federal
Communications Act.
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18.7 Except for claims by third parties which fall within the scope of a
Party's indemnification obligations, neither Party shall be liable to the other
Party for any special, indirect, consequential, or punitive damages.
18.8 The Parties agree that they will not use the name, service marks or
trademarks of the other party or any of its Affiliates in any advertising,
publicity releases or sales presentations, without such Party's written consent.
Neither Party is licensed hereunder to conduct business under any logo,
trademark, service or trade name (or any derivative thereof) of the other Party.
18.9 No Party shall make any public statement or issue any press release
concerning the terms of this Agreement except as necessary to comply with
requirements of any law, regulation, or the order or judgment of a court or
tribunal of competent jurisdiction. If any such public statement or release is
so required, and AWS and Xxxxxx mutually agree to such statement or release, the
Party making such disclosure shall consult with the other Party prior to making
such statement or release and the Party shall use all reasonable efforts, act in
good faith, to agree upon a text for such statement or release which is
satisfactory to AWS and Xxxxxx. Nothing contained herein is intended to limit
the ability of the Parties to make statements regarding the availability to such
Party's Customers of the Services to be provided hereunder by the other Party or
that such other Party is the provider of such Services.
18.10 Neither of the Parties will be liable for nonperformance or defective
performance of its obligations under this Agreement to the extent and for such
periods of time as such nonperformance or defective performance is due to
reasons outside such Party's control, including, without limitation, acts of
God, war, acts of any governmental authority, riots, revolutions, fire, floods,
explosions, sabotage, nuclear incidents, lightning, weather, earthquakes,
storms, sinkholes, epidemics, strikes, or delays of suppliers or subcontractors
for the same causes. Neither Party shall be required to settle any labor dispute
or other third party dispute in any manner which is deemed by that Party to be
less than totally advantageous, in that Party's sole discretion.
18.11 Except as specifically provided herein, this Agreement is a
non-exclusive arrangement between the Parties and nothing contained in this
Agreement is intended or should be construed to preclude or limit a Party from
obtaining from or providing to a third party Service of a type available or
required to be provided under this Agreement
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EXECUTED as of the date first written above.
AT&T WIRELESS SERVICES, INC. XXXXXX CELLULAR SYSTEMS, INC.
By: /s/ Xxx Xxxxx By: /s/ G. Xxxxxx Xxxxx
-------------------------------- --------------------------------
Name: Xxx Xxxxx Name: G. Xxxxxx Xxxxx
------------------------------
Title: Vice President - Title: President
Carrier Relations -----------------------------
Date: 7/8/98 Date: 8/24/97
------------------------------ ------------------------------
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