Exhibit 10.3.1
CELLULAR ONE LICENSE AGREEMENT
between
Cellular One Group
and
Erie Cellular Tel. Co.
CELLULAR ONE LICENSE AGREEMENT
SECTION TITLE PAGE NO.
------- ----- --------
X. XXXXX, LIMITATIONS AND ACKNOWLEDGMENTS ................... 8
II. TERM AND RENEWAL ......................................... 9
III. RIGHTS AND DUTIES OF LICENSOR ............................ 11
IV. DUTIES OF LICENSEE ....................................... 18
V. FEES AND REPORTING ....................................... 28
VI. MARKS .................................................... 33
VII. CONFIDENTIAL INFORMATION ................................. 37
VIII. ADVERTISING .............................................. 38
IX. INSURANCE ................................................ 41
X. TRANSFER OF INTEREST ..................................... 42
XI. DEFAULT AND TERMINATION .................................. 44
XII. OBLIGATIONS UPON TERMINATION OR EXPIRATION ............... 50
XIII. INDEPENDENT STATUS AND INDEMNIFICATION ................... 51
XIV. APPROVAL AND WAIVERS ..................................... 52
XV. NOTICES .................................................. 52
XVI. ENTIRE AGREEMENT ......................................... 53
XVII. SEVERABILITY AND CONSTRUCTION ............................ 53
XVIII. APPLICABLE LAW ........................................... 54
XIX. ACKNOWLEDGMENTS .......................................... 55
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CELLULAR ONE LICENSE AGREEMENT
THIS AGREEMENT is entered by and between Cellular One Group, a Delaware
general partnership ("Licensor") and Erie Cellular Tel. Co., a
corporation/partnership organized under the laws of Ohio ("Licensee").
PREAMBLE
Licensor is a Delaware general partnership (the "Partnership") with its
principal place of business in Dallas, Texas. The current general partners of
the Partnership are Cellular One Marketing, Inc., a Delaware corporation,
Cellular One Development, Inc., a Delaware corporation, and Vanguard Cellular
Corp., a North Carolina corporation. Additional partners may be admitted to the
Partnership from time to time. (The Partnership partners, as they may exist from
time to time, are referred to herein as the "Partnership Partners").
The Partnership is engaged in the business of licensing and promoting
the service xxxx "Cellular One" and certain related trademarks, service marks
and designs.
Licensee desires to receive a license from Licensor to use the
Cellular One-Registered Trademark- xxxx, together with the marks designated on
Exhibit A hereto and such other marks as Licensor may hereinafter designate in
writing (collectively referred to as the "Marks") within the market(s)
described on Exhibit B (the "Licensed Territory") in accordance with the
provisions of this License Agreement.
INTRODUCTORY STATEMENT
Licensor's goal has been and continues to be the promotion of the Marks
as being synonymous, in the minds of consumers of telecommunications services,
with nationwide, dependable, high quality telecommunications services and
related services, goods and equipment (the "National Brand Goal"). Historically,
Licensor's strategy to achieve the National Brand Goal has been to license the
Marks, and predecessors of the Marks, for use by providers of Cellular
Radiotelephone Services (as defined in 47 C.F.R Section22.99) ("Cellular
Telephone Services") on the so-called "A" side in certain Federal Communications
Commission ("FCC") designated markets. The competition to licensees of the Marks
has historically come primarily from "B" side providers of Cellular Telephone
Services (who constitute the other providers of Cellular Telephone Services
under the duopoly created by the FCC for such service). Given this duopoly,
Licensor believes that its strategy for achieving the National Brand Goal has
been effective to date. However, the telecommunications landscape has changed
dramatically in
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recent periods and Licensor believes that its strategy may need to be modified
or entirely new strategies adopted to achieve and maintain the National Brand
Goal.
Licensor believes that these modified or new strategies will be
essential if its licensees are to enjoy the competitive benefits afforded by a
widely recognized national brand as other powerful national brand competitors,
which have not historically competed with licensees of the Marks, enter their
markets directly. Licensor believes that the emergence of these major new
competitors, with powerful national brands, will be accompanied by technological
changes that will render the distinction between Cellular Telephone Services and
other telecommunications services increasingly less important to consumers.
Licensor expects that consumers will begin to focus on applications, utilities,
brand names and distribution channels and will demand that a provider of
telecommunications services, either directly or through alliances, offer a full
menu of communications, such as long distance, cellular (or other wireless)
service, internet access, satellite television and local service, all under one
name and perhaps billed by a single source. Licensor believes that its current
and future strategies must be sufficiently flexible to permit it to respond to
these expected changes in the industry and to provide its licensees with a
national brand that can be used in a manner that will allow those licensees to
meet consumer expectations.
Licensor plans to continue, as its primary strategy, granting licenses
to "A" side Cellular Telephone Services providers (both in newly licensed
markets or in connection with the renewal of currently outstanding Cellular One
"A" side licenses), and to begin attempting to grant licenses to "B" side
providers of Cellular Telephone Services or to resellers of Cellular Telephone
Services in FCC licensed markets not served by an "A" side Cellular One
licensee. Licensor may also consider, however, licensing a provider of Alternate
Wireless Services (as defined below), such as a personal communications service
provider, the right to utilize the Marks in a market or markets where no
Cellular Telephone Services provider utilizes the Marks to promote such
services.
Licensor has, from time to time, granted licensees of the Marks the
right to use one or more of such Marks in connection with products or services
other than those constituting Cellular Telephone Services. Among other things,
Licensor has permitted licensees of the Marks to incorporate one or more of the
Marks onto cellular telephone equipment or to utilize one or more of the Marks
in connection with the nationwide delivery of calls to cellular telephones.
Licensor has also granted licensees the right to continue to use or to begin
using one or more of the Marks in connection with some of the products and
services (the "Additional Products" and "Additional Services") described on
Exhibit D hereto. Licensor anticipates that consumers of wireless
telecommunications services may come to expect that high quality offerings of
services such as Cellular Telephone Services or other Primary Services (as
defined below) will include uniform functionality and service features and
bundles of Additional Products, Additional Services and Cellular Telephone
Services or other Primary Services. As such demand develops, Licensor expects to
designate standards for the offering and delivery of the Cellular Telephone
Services or other Primary Services and related Additional Products and
Additional Services, and to identify one or more Additional Products or
Additional Services as
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"Core Products," the offering of which will be subject to the provisions of this
License Agreement, as described in Section III.I. hereof.
As part of its plan to achieve and maintain the National Brand Goal,
Licensor will from time to time establish standards pursuant to Section III.B.
hereof, defining minimum acceptable operating and other criteria for offerings
by Licensee of the Cellular Telephone Services or other Primary Services and
related Additional Services and Additional Products. In light of market
conditions, as they change from time to time, Licensor may designate separate
standards for products offered under a particular Xxxx. Licensor has provided,
on Exhibit E to this License Agreement, a description of the technical standards
and service standards (collectively, the "Quality Standards") which will
initially be applicable to the Cellular Telephone Services or other primary
Services, Core Products, Additional Services and Additional Products displaying
or sold under the various Marks.
Licensor may, in the future, designate certain of the Additional
Products or Additional Services as Core Products where and when it determines
that consumers have come to expect that such products or services will be
offered in conjunction with any high quality offering of Cellular Telephone
Services or other Primary Services, and in order to achieve and maintain the
National Brand Goal. The existing required Core Products are nationwide call
delivery and roaming capability. Additional Core Products may include, by way of
example only, such products or services as long distance, voice messaging, local
exchange service, dispatch service and paging service, which offer consumers
nationwide consistency of operation or other benefits. Unless it elects not to
do so, Licensee will be obligated to offer the Core Products under the specified
Marks throughout the Licensed Territory in connection with its delivery of
Cellular Telephone Services or other Primary Services. If Licensee is unable or
elects not to so offer one or more Core Products in connection with Cellular
Telephone Services or other Primary Services, Licensor, subject to Section
III.I. of this License Agreement, may amend the License Agreement to terminate
Licensee's rights to utilize the Marks to promote the Core Products not then
being offered or, with respect to the existing Core Products of nationwide call
delivery and roaming capability, may terminate this License Agreement.
The development of the wireless telecommunications industry and the
regulatory patterns relating to that industry have resulted in overlaps or
conflicts between licensees of the Marks with regard to certain promotional
activities. In order to permit licensees of the Marks to make full use of such
Marks in their promotional and other activities and in order to reduce conflicts
between or the expense of resolving conflicts between such licensees, this
License Agreement permits licensees of the Marks to make certain incidental use
of the Marks outside of their respective licensed territories while permitting
Licensor to impose reasonably necessary restrictions, including requiring the
use of tag lines or other identifying mechanisms, where necessary to maintain
the integrity of the licensed territories and to avoid customer confusion
regarding the providers of Cellular Telephone Services or other Primary Services
therein. In addition, because the markets for wireless telecommunications
services vary from geographic area to geographic area for economic, demographic,
topographic, legal and other reasons, and because Licensor expects that certain
markets may develop at different rates from others, this
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License Agreement permits Licensor to vary definitions of Cellular Telephone
Services or other Primary Services, Core Products, Additional Services and
Additional Products and to vary the Quality Standards and certain of the fees
payable hereunder in order to achieve or maintain progress toward the National
Brand Goal.
The foregoing is intended as an explanation of Licensor's goals and
planning, and shall not be deemed to affect the meaning or construction of any
of the following provisions. In the event of any conflict between the foregoing
and the following provisions, the following provisions shall prevail.
DEFINED TERMS
As used in this License Agreement, the capitalized terms set forth
below shall have the following meanings:
"1-800-CELL ONE Xxxx" shall mean the service xxxx denoted as such on
Exhibit A hereto.
"800 Number Supplement" shall have the meaning set forth in Section
IV.J.1.(b) of this License Agreement.
"A" Side" shall mean the Block A (nonwireline) cellular frequencies
as designated by the FCC.
"Additional Fees" shall mean any fees determined in accordance with
Section V.G. of this License Agreement.
"Additional Products" shall mean the products described as "Additional
Products" on Exhibit D hereto.
"Additional Services" shall mean the services described as "Additional
Services" on Exhibit D hereto.
"Advisory Council" shall have the meaning set forth in Section III.D.
of this License Agreement.
"Affiliate" shall have the meaning set forth in Section X.C. of this
License Agreement.
"Alternate Wireless Services" shall mean any telecommunications service
offering simultaneous, two-way wireless transmission and receipt of voice or
data, other than Cellular Telephone Services.
"Annual Administrative Fee" shall mean the fee determined in accordance
with Section V.D. of this License Agreement.
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"Annual Advertising Fee" shall mean the fee determined in accordance
with Section V.C. of this License Agreement.
"Annual License Fee" shall mean the fee determined in accordance with
Section V.B. of this License Agreement.
"Application Fee" shall mean the fee determined in accordance with
Section V.A. of this License Agreement.
"B" Side" shall mean the Block B (wireline) cellular frequencies as
designated by the FCC.
"Cellular One Xxxx" shall mean the trademark or service xxxx "Cellular
One" denoted as such on Exhibit A hereto.
"Cellular One Promotional Fund" shall have the meaning set forth in
Sections III.E. and VIII.C. of this License Agreement.
"Cellular Telephone Services" shall have the meaning set forth in the
Introductory Statement to this License Agreement.
"Certificates of Insurance" shall mean certificates designating
insurance coverages required to be delivered to Licensor pursuant to Section
IX.C. of this License Agreement.
"C.F.R." shall mean the Code of Federal Regulations, as may be amended
from time to time.
"Change of Control" shall have the meaning set forth in Section X.D. of
this License Agreement.
"Confidential Information" shall have the meaning set forth in Section
VII.A. of this License Agreement.
"Consumer Service Number" shall have the meaning set forth in Section
IV.J. of this License Agreement.
"Consumer Service Number Fee" shall mean the fee determined in
accordance with Section V.F. of this License Agreement.
"Core Products" shall mean those Additional Products and Additional
Services designated as "Core Products" on Exhibit D to this License Agreement,
as amended from time to time.
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"CTIA" shall mean the Cellular Telecommunications Industry Association,
or any successor thereto recognized by Licensor as such.
"Effective Date" shall mean the date shown adjacent to Licensor's
signature on this License Agreement.
"FCC" shall have the meaning set forth in the Introductory Statement to
this License Agreement.
"Fund" shall have the meaning set forth in Section VIII.C. of this
License Agreement.
"Graphic Standards Manual" shall have the meaning set forth in Section
III.A. of this License Agreement.
"Guide to Quality Operations" shall mean the guide and other materials
provided by Licensor to Licensee pursuant to Section III.B. hereto.
"Incidental Use" shall have the meaning set forth in Section VI.C. of
this License Agreement.
"initial Year" shall have the meaning set forth in Section II.A.2. of
this License Agreement.
"Licensed Territory" shall mean the market(s) described on Exhibit B,
as amended from time to time pursuant to the provisions of this License
Agreement.
"Licensee" shall have the meaning set forth in the first paragraph of
this License Agreement.
"Licensor" shall mean Cellular One Group, a Delaware general
partnership, and its permitted successors and assigns under this License
Agreement.
"Long Distance Carrier" shall have the meaning set forth in Section
IV.J.1.(a) of this License Agreement.
"MSA" shall mean the cellular Metropolitan Statistical Areas as
referred to in 47 C.F.R. Section 22.909.
"Marks" shall have the meaning set forth in the Preamble to this
License Agreement.
"National Brand Goal" shall have the meaning set forth in the
Introductory Statement to this License Agreement.
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"Other 800 Programs" shall have the meaning set forth in Section V.F.
of this License Agreement.
"Partnership" shall have the meaning set forth in the Preamble to this
License Agreement.
"Partnership Partners" shall have the meaning set forth in the Preamble
to this License Agreement.
"Permits" shall have the meaning set forth in Section IV.B. of this
License Agreement.
"Personal Communication Services" shall have the meaning set forth in
Exhibit D hereto.
"Potential Customer Confusion" shall have the meaning set forth in
Section VI.D. of this License Agreement.
"Primary Services" shall mean the services specifically described on
Exhibit C hereto.
"Quality Standards" shall mean the technical standards and service
standards applicable to Primary Services, Core Products, Additional Services and
Additional Products set forth on Exhibit E to this License Agreement, as amended
from time to time.
"RSA" shall mean the cellular Rural Service Areas as referred to in 47
C.F.R. Section22.909.
"Revised Licenses" shall mean the license agreements between Licensor
and its licensees, which are entered into after July 31, 1996 as part of
Licensor's general licensing program utilizing the Marks for or in conjunction
with the provision of telecommunication services, including, without limitation,
the provision of Cellular Telephone Services and/or other telecommunication
services substantially the same as or reasonably similar to the Primary Services
being licensed to Licensee hereunder.
"Strategic Market Change" shall have the meaning set forth in Section
III.H.4. of this License Agreement.
"Subsequent Year" shall have the meaning set forth in Section II.A.2.
of this License Agreement.
"Survey Company" shall have the meaning set forth in Section III.C. of
this License Agreement.
"Term" shall have the meaning set forth in Section II of this License
Agreement.
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"Terminated Market(s)" shall have the meaning set forth in the
introduction to Section XII of this License Agreement.
The parties therefore agree as follows:
X. XXXXX, LIMITATIONS AND ACKNOWLEDGMENTS
X. Xxxxx
1. Subject to the remainder of this License Agreement
(including without limitation, Licensor's rights described in Section I.B and
Sections III.E. through III.J. below), Licensor grants to Licensee, upon the
terms and conditions of this License Agreement, the exclusive right, license and
privilege to use the Marks in the Licensed Territory described on Exhibit B
during the Term of this License Agreement to promote the Primary Services,
consisting of Cellular Telephone Services on the "A" side, "B" side and/or the
other services described on Exhibit C hereto.
2. Subject to the remainder of this License Agreement,
Licensor grants to Licensee, upon the terms and conditions of this License
Agreement, the exclusive right, license and privilege to use the Marks during
the Term in connection with the promotion and sale of the Additional Services
and the Additional Products in the Licensed Territory.
3. Subject to the terms of this License Agreement, Licensor
grants to Licensee, upon the terms and conditions of this License Agreement, the
right, license and privilege to make Incidental Use (as defined in Section
VI.C.) of the Marks.
B. Limitations on Grant
1. If the Licensed Territory as described on Exhibit B
consists of multiple markets and the Licensee's rights under this License
Agreement are terminated with respect to one or more of such markets in
accordance with the provisions of this License Agreement, Exhibit B to this
License Agreement and specifically the term "Licensed Territory" shall
thereafter be deemed to apply only to the remaining market(s) as to which
Licensee's rights under this License Agreement continue. In addition, the
Licensed Territory may be modified, in accordance with the provisions of Section
VI.D., in the event that Licensor determines that Potential Customer Confusion
exists.
2. Notwithstanding Licensee's exclusive right to utilize the
Marks to promote the Primary Services, Additional Services and Additional
Products in the Licensed Territory, other persons possessing a license to use
the Marks may promote the Primary Services, Additional Products and Additional
Services provided by such parties outside of the Licensed Territory in media
receiving distribution within or accessible by persons located in the Licensed
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Territory, such as regional magazines or newspapers, regional television and
radio and World Wide Web pages.
3. Subject to the provisions of Sections III.H. and III.I. of
this License Agreement, Licensor may terminate Licensee's right to use the Marks
to designate or promote certain Core Products, Additional Products and
Additional Services.
C. Acknowledgments
1. Subject to the specific grants to Licensee set forth in
this Section I, Licensee acknowledges that Licensor has and retains the right to
use and license the Marks anywhere in the world, within or outside of the
Licensed Territory and that Licensee shall have no rights with regard to such
use or any benefits therefrom.
2. Licensor and Licensee agree that effective with the
commencement of the Term of this License Agreement, all prior licenses to which
Licensee is a party relating to the use of the Marks, or any of them, in the
Licensed Territory or any part thereof shall terminate, together with all of
Licensee's rights thereunder.
II. TERM AND RENEWAL
A. Term
1. Except as otherwise provided in Section II.B. of this
License Agreement, the term (the "Term") of this License Agreement is five (5)
years, beginning on the Effective Date and ending on the day preceding the fifth
anniversary thereof. Licensee recognizes and agrees that Licensor may modify or
terminate the Term as it applies to Additional Products and Additional Services
or Core Products in accordance with Articles III and VI hereof.
2. The period from the Effective Date of this License
Agreement until December 31 of that calendar year shall be referred to herein as
the "Initial Year." Each subsequent calendar year commencing after the end of
the Initial Year shall be referred to herein as a "Subsequent Year."
B. Renewal
Licensee may, at its option, renew the license granted by this
License Agreement for two (2) additional terms (each, in turn, the "Term") of
five (5) years each provided that:
1. Licensee gives Licensor written notice of its election to
renew not less than six (6) months nor more than twelve (12) months before the
end of the expiring Term;
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2. Licensee is neither in default of any of its obligations
under this License Agreement, nor on probation pursuant to Section XI.E.;
3. Licensee has not during the expiring Term received any
notice of default under Section XI.D. which relates to a default which has not
been cured;
4. At the end of the expiring Term, Licensee continues to hold
all of the Permits (as defined in Section IV.B.) necessary to provide the
Primary Services and those of the Core Products, Additional Services and
Additional Products being provided, sold or distributed by it;
5. No later than ninety (90) days before the end of the
expiring Term, Licensee executes Licensor's then-current form of license renewal
agreement, which agreement will supersede this License Agreement in all
respects, provided that such license renewal agreement shall not contain any
terms, provisions or conditions which differ materially from the terms,
provisions or conditions of this License Agreement, except terms, provisions and
conditions (i) which in the good faith judgment of Licensor are not materially
adverse to Licensee, (ii) which are appropriate, in the good faith judgment of
Licensor, to accommodate any material economic, technological, demographic, or
other market changes occurring during the prior five (5) year Term, (iii) which
Licensor determines in good faith are necessary to protect the Marks, (iv)
which Licensor determines in good faith are necessary to prevent Potential
Customer Confusion (as defined in Section VI.D.), (v) which relate to charges
and fees (including increases) which Licensor believes in good faith are
necessary to provide adequate support for the promotion of the Marks consistent
with the National Brand Goal during the renewal Term in question, (vi) which are
reasonably necessary in Licensor's determination to maintain or achieve the
National Brand Goal, (vii) which Licensor adopts pursuant to Sections III.G.,
III.H. or III.I. hereof, or (viii) which relate or are enacted pursuant to
Section IV.E.;
6. At the end of the expiring Term, Licensee shall be in
compliance with the provisions of Section IV.A.2. If Licensee has been assigned
probation status at such time as described in Section IV.A.2., then such
probation status shall continue and the required timely improvements shall be a
condition of effective renewal;
7. At the end of the expiring Term, Licensee is offering on a
good faith commercial basis the Primary Services and all of the Core Products
for which Licensee is authorized to utilize the Marks, in substantially all of
the Licensed Territory in accordance with the Quality Standards and is promoting
such Primary Services and Core Products utilizing the applicable Marks in
accordance with the Graphic Standards Manual; and
8. At the end of the expiring Term, Licensee shall have
satisfied all monetary obligations owed by Licensee to Licensor, and shall have
timely met such obligations throughout the term of this License Agreement.
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III. RIGHTS AND DUTIES OF LICENSOR
All duties of Licensor under this License Agreement are to Licensee,
and no other party is entitled to rely on, enforce or obtain relief for breach
of any such obligation, either directly or by subrogation. This License
Agreement is not intended to and shall not create any partnership, joint venture
or other business relationship, other than that of Licensor and Licensee,
between the parties hereto, or to vest any rights in any third party or group of
third parties. This License Agreement shall not create any rights on behalf of
Licensee against any third party, including any other licensee of the Marks.
Subject to the foregoing, and to the remainder of this License Agreement,
Licensor shall undertake the following duties:
X. Xxxxx Usage Guidelines
1. Licensor will provide Licensee, from time to time, with a
Graphic Standards Manual (the "Graphic Standards Manual") containing written and
graphic guidelines for the correct reproduction, application and presentation of
the Marks. The Graphic Standards Manual may include, among other things, Xxxx
specimens, samples of advertisements and clip art indicating color, proportion,
and format. The Graphic Standards Manual may also provide for the use of one or
more tag lines to be used to differentiate or highlight a particular service or
offering or group of services or offerings, such as "Paging By Cellular One" and
require its usage in specific circumstances, including use on signage and
promotional materials referenced in Section IV.F. The Graphic Standards Manual
may also provide guidelines for the proper use of tag lines and require such
usage in the event that two or more licensees of the Marks are permitted to make
use thereof within the Licensed Territory, or any part thereof, pursuant to
Sections VI.C. or VI.D.
2. From time to time, upon not less than one (1) year's
notice, Licensee shall be entitled to designate one or more icons to be used
with one or more of the Marks and the manner of their usage to signify an
association of such icon or icons with such Marks.
B. Technical Guidelines, Quality Standards
1. Licensor will provide Licensee with a Guide to Quality
Operations (the "Guide to Quality Operations") containing suggestions for
providing customers with high quality Primary Services, Core Products,
Additional Services and Additional Products, and other materials, as Licensor
deems appropriate. The Guide to Quality Operations may be modified and
supplemented from time to time as Licensor deems appropriate.
2. Attached to this License Agreement as Exhibit E are the
Quality Standards (the "Quality Standards"), as of the date hereof, applicable
to Primary Services, Core Products, Additional Services and Additional Products,
respectively, to be sold or provided, as the case may be, utilizing the Marks.
The Quality Standards include, as a general matter, criteria for minimum
acceptable service delivery levels and encompass such matters as geographic
coverage requirements, participation in a nationwide call delivery network,
standardized dialing patterns
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and the availability of telephone customer assistance. The Quality Standards
also include required features and technical guidelines for minimum acceptable
system functionality (although specific equipment or system designs will not be
required) and may encompass such matters as required functionality for
telephones and other devices constituting Additional Products, required
compliance by equipment with designated industry standards, compliance by
switching equipment with uniform handoff requirements, and similar requirements
relating to the delivery of Primary Services and Additional Services or the
operation of Additional Products.
3. From time to time, Licensor, by written notice to Licensee
in accordance with Section IV.A., shall have the right to amend the Quality
Standards with regard to any Xxxx to require added features or functionality for
Primary Services, to modify the minimum technical or operating standards
relating thereto or to require coordination and uniformity in the delivery of
Primary Services, Additional Services, Additional Products and Core Products
within the Licensed Territory and beyond. Licensor shall not be obligated to
consider the particular needs of Licensee or any group of licensees of the Marks
in connection with any amendment to the Quality Standards, except that Licensor
shall not propose amendments to the Quality Standards applicable to Licensee
only.
4. From time to time, Licensor, by written notice to Licensee
in accordance with Section IV.A., shall have the right to amend Exhibit E with
regard to any Xxxx to designate features, technical or operating standards or
functionality appropriate under existing economic, market, demographic and
technological conditions in similarly situated markets directed to the
achievement and maintenance of the National Brand Goal. Although uniformity and
consistency will normally be required by Licensor throughout the Licensed
Territory and among the various territories or markets in which Licensee and
others are licensed to use the Marks, the Licensor may, from time to time, make
certain distinctions, based upon demographic, topographic, legal or other
considerations, and provide for differing Quality Standards with regard thereto.
5. In addition, Licensor may, upon at least six (6) months
written notice to Licensee, amend Exhibit E to amend the Quality Standards for
Additional Products, Additional Services and Core Products, to designate Quality
Standards for any new Marks added to Exhibit A hereto or to designate Quality
Standards for Additional Products, Additional Services and Core Products for
which separate Quality Standards do not exist. In the event that an Additional
Product or Additional Service becomes a Core Product, Licensor may further amend
Exhibit E to establish Quality Standards for the offering and delivery of the
Core Products, as a whole or as a package of Core Products or Primary Services
and Core Products.
6. Exhibit E to this License Agreement, as amended from time
to time, is incorporated herein by reference. All references to the Quality
Standards shall mean those standards established, as of such time, by Exhibit E.
7. At Licensee's request, Licensor shall be entitled, but in
no event shall be required, to waive compliance by Licensee with one or more
of the Quality Standards in one or
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more of the markets constituting a part of the Licensed Territory, in the
event that Licensor believes such a waiver to be consistent with the National
Brand Goal. Any waiver by Licensor of a Quality Standard must be in writing
and may, at Licensor's election, be for a limited period or subject to one or
more conditions.
C. Customer Satisfaction Surveys
Licensor shall have the right, at its own expense, commission
an independent survey company ("Survey Company") to conduct a customer
satisfaction survey of Licensee's customers on a yearly basis for purposes of
assessing the quality of Licensee's Primary Services, Additional Services,
Additional Products or Core Products, or all of them. The methodology of the
survey will be determined by the Survey Company and Licensor. An outline of
current survey methodology for Primary Services, which may change from time to
time, is attached as Exhibit F. The results of all surveys of Licensee's
customers will be shared with Licensee to assist Licensee in improving its
business and complying with Licensee's obligations under this License Agreement,
including its obligations with regard to the Quality Standards described herein.
The results of surveys will be used to evaluate the general level of customer
satisfaction and to assist Licensor in determining whether or not Licensee is
meeting the Quality Standards. Licensor will instruct the Survey Company to
obtain all required survey information directly from the Licensee and not
through or in conjunction with Licensor. The Survey Company will be required to
execute an appropriate confidentiality agreement for the benefit of Licensee and
the other licensees of the Marks, which shall provide that the Survey Company
will not disclose any Confidential Information of Licensee to Licensor, the
Partnership Partners or affiliates, or their employees or to any other party
(except that the results of the survey for each market and other survey
information which is applicable generally to all licensees of the Marks or any
of them may be disclosed to Licensor and used by Licensor in connection with its
business operations).
D. Licensee Advisory Council
Licensor has established an elected council of licensees
("Advisory Council") comprised of licensees other than Partnership Partners from
a broad cross-section of markets throughout the United States, to advise and
consult with Licensor regarding material matters such as advertising, marketing
and Quality Standards relating to the Marks and to act as a liaison organization
between Licensor and the licensees of the Marks. The procedures and
responsibilities adopted for the operation of the Advisory Council are subject
to change, from time to time, as may be appropriate in the judgment of Licensor
to provide the most effective organization for performing the contemplated
functions of the Advisory Council. The representative of any licensee serving on
the Advisory Council shall be an officer of such licensee or other person
reasonably acceptable to Licensor. The charter of responsibility of the Advisory
Council provides that all members of the Advisory Council will be informed of
applicable antitrust laws and shall abide by any decisions of Licensor's
antitrust counsel in such regard.
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E. National and Regional Advertising
Licensor has established and maintains the Cellular One
Promotional Fund, as described in Section VIII.C. of this License Agreement.
Licensor administers the Fund with the goal of enhancing the image of the Marks
and achieving or maintaining the National Brand Goal. Licensor, in connection
with the Cellular One Promotional Fund, or otherwise, shall have the right, from
time to time, to promote the Marks in local, regional or national advertising
receiving distribution within the Licensed Territory and to engage in any other
promotional activities, including sponsoring sporting or other public events
within the Licensed Territory, as Licensor deems appropriate in connection with
the National Brand Goal. No consent of Licensee shall be necessary to any such
promotional activities.
F. National/Regional Programs
Licensor may, in its discretion, make available a national
and/or one or more regional account programs under which, through the voluntary
cooperation of its licensees in various markets, client companies with multiple
market operations may enter into a single contract arrangement for one or more
of the Primary Services or any of the Core Products, Additional Services or
Additional Products for their employees located in such markets. Licensor or its
designee may administer any such national or regional accounts program(s). In
addition, Licensor may, from time to time, utilize the Marks or permit third
party licensees of the Marks to utilize the Marks to promote the sale and
distribution of Additional Products or Additional Services in or by means of
media, such as, but not limited to, direct mail catalogs, World Wide Web pages
and radio and television broadcasts receiving wide distribution, both within and
outside of the Licensed Territory; provided, however, that no such promotional
activity shall have as its primary purpose the targeting of any single market or
territory. In addition, Licensor may also, from time to time, utilize the Marks
or permit third party licensees of the Marks to promote and sell Additional
Products or Additional Services as part of a coordinated regional or national
marketing effort including all or part of the Licensed Territory; provided,
however, that no such promotional activity shall have as its primary purpose the
targeting of any single market or territory.
G. Designation of Primary Services
1. Set forth on Exhibit C hereto are descriptions of the
Primary Services applicable to Licensee as of the dated of this License
Agreement. From and after the date hereof, Licensor and Licensee, by executing
an amendment to Exhibit C, shall be entitled to amend the description of the
Primary Services and to add or delete services therefrom. Licensor shall be
entitled to group the Primary Services into categories (for use, among other
things, in defining Quality Standards applicable to particular Primary Services)
and, with the consent of Licensee, to add or omit one or more services from the
definition of Primary Services with regard to one or more markets constituting
part of the Licensed Territory.
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2. Consistent with Section VI.D., to the extent necessary to
prevent Potential Customer Confusion, Licensor shall be entitled, with or
without the consent of Licensee, to amend Exhibit C hereto to modify the
description of Primary Services or to separate Primary Services into classes or
categories for the purpose of differentiating between the Primary Services (by
means of tag lines or otherwise) to be rendered in one or more markets
constituting a part of the Licensed Territory; provided, however, that any such
amendment of Exhibit C shall only become effective upon at least six (6) months
written notice to Licensee thereof.
H. Designation and Deletion of AddItional Products and Services
1. Set forth on Exhibit D hereto under the headings
"Additional Products" and "Additional Services," respectively, are descriptions
of products and services which, upon thirty (30) days written notice to
Licensor, Licensee may promote or sell utilizing the Marks which are applicable
to the Additional Product or Additional Service in question, as may be
designated in Licensor's Graphic Standards Manual. Licensor may review, from
time to time, Exhibit D to this License Agreement in light of current
demographic, technological, regulatory and other circumstances (including,
without limitation, Strategic Market Changes) for the purpose of adding or
deleting products and services from the descriptions of Additional Products and
Additional Services, modifying the definitions assigned to one or more
Additional Products or Additional Services or modifying the Term of this
License Agreement or any Licensed Territory with regard thereto. In undertaking
such review, the Licensor shall consider Exhibit D in light of the National
Brand Goal. Licensor shall not be obligated to consider the needs of any
particular licensee or group of licensees in connection with its review of
Exhibit D, nor shall it have an obligation, other than as specifically provided
for herein, to inform Licensee of the progress of such review. Any such
amendment of Exhibit D shall be made pursuant to Sections III.H.2 through
III.H.5 below or pursuant to Section VI.D. hereof.
2. Based upon the review contemplated by Section III.H.1.
above, or otherwise as deemed appropriate by Licensor in its sole discretion,
Licensor may at any time, or from time to time, during the Term, upon not less
than thirty (30) days written notice to Licensee designate one or more new or
additional services or products as Additional Services or Additional Products.
3. Based upon the review contemplated by Section III.H.1.
above, or as otherwise deemed appropriate by Licensor, at any time from and
after January 1, 1999, Licensor may modify or amend Exhibit D hereto, or any
description set forth therein, and may delete products or services constituting
Additional Products or Additional Services, reduce or extend the Term with
resect to one or more Additional Products or Additional Services or modify the
Licensed Territory with regard thereto (i) immediately upon written notice to
Licensee with respect to any Additional Product or Additional Service not then
being offered to the public throughout the Licensed Territory on a good faith,
nondiscriminatory commercial basis by Licensee under the specified Marks at the
time of such written notice, (ii) upon not less than six (6) months written
notice with respect to any Additional Product or Additional Service which is
being offered to the public throughout the Licensed Territory on a good faith,
15
nondiscriminatory commercial basis by Licensee under the specified Marks at the
time of such written notice, provided that in the event of modification or
amendment pursuant to either (i) or (ii) preceding, Licensor shall have
determined that a Strategic Market Change has occurred and that such
modification or amendment is required to reasonably permit appropriate response
thereto. A written explanation of the reason for such modification or amendment
shall accompany the written notice referred to in (i) or (ii) preceding. During
such time as Licensee can demonstrate to the satisfaction of Licensor that
Licensee is offering and actively promoting the Primary Services, long distance
service and local calling service (as further described on Exhibit D) under the
specified Marks to the public (including business, residential and mobile
consumers) throughout the Licensed Territory on a good faith, nondiscriminatory
commercial basis, Licensor may agree to refrain from licensing others to use the
Marks for other Additional Products and Additional Services in the Licensed
Territory. Any such agreement shall be subject to those conditions and
limitations as Licensor may establish.
4. For the purposes of this Section III.H., a "Strategic
Market Change" shall mean any change in economic, demographic, technological,
regulatory or competitive conditions which Licensor reasonably believes requires
a material modification in the manner in which the Primary Services, the Core
Products, the Additional Products or the Additional Services, or any of them,
are marketed or delivered, in order to continue the successful promotion of the
Marks to achieve or maintain the National Brand Goal. While it is anticipated
that a Strategic Market Change will be national in scope, and that Licensor's
response thereto will be similarly uniform, Licensor shall be entitled, subject
to Section III.B.4., to respond under this Section III.H. to Strategic Market
Changes affecting a more limited class or classes of markets.
5. Notwithstanding Section III.H.3. above, Licensee shall have
a limited right to have Exhibit D amended to restore Additional Services or
Additional Products deleted under Section III.H.3. For the ninety (90) day
period following delivery of a notice of modification or amendment under Section
III.H.3., Licensee may submit a request to Licensor to reinstate an Additional
Product or Additional Service on Exhibit D or to rescind any other modification
of Exhibit D adopted pursuant to Section III.H.3, stating its reasons therefor.
Licensor shall consider Licensee's request for reinstatement in good faith, but
shall not be obligated to amend Exhibit D. Any reinstatement of an Additional
Product or Additional Service under this Section III.H.5. shall be subject to
such conditions as Licensor shall believe appropriate under the circumstances,
consistent with the achievement or maintenance of the National Brand Goal.
I. Designation and Deletion of Core Products
1. From time to time after the date hereof, to the extent that
Licensor determines that consumers have come to expect that one or more of the
Additional Products and Additional Services described on Exhibit D, as amended
from time to time, are commonly offered as a part of any offering of nationwide,
dependable, high quality telecommunications services or are otherwise
fundamental to the achievement or maintenance of the National Brand Goal,
Licensor may, upon six (6) months written notice to Licensee, amend Exhibit D
hereto to designate those Additional Products and Additional Services as "Core
Products" and may
16
further designate an effective date for such designation. However, nationwide
call delivery and nationwide roaming as further described on Exhibit D are
existing required Core Products, and need not be further designated as such
pursuant to this Section III.H.1.
2. From and after the effective date of any designation of an
Additional Product or Additional Service as a Core Product, Licensee shall offer
such Additional Service or Additional Product under the specified Marks on a
good faith commercial basis in substantially all of the Licensed Territory, or
shall have adopted and provided to Licensor in writing a good faith plan
acceptable to Licensor for doing so promptly. Licensee shall promote using the
specified Marks and make all the Core Products available to its customers and to
the public generally in the Licensed Territory, in connection with promoting and
making the Primary Services available and shall not discriminate in terms of
price, availability or promotional efforts in favor of similar products or
services designated by other trademarks or service marks. Upon Licensor's
request. Licensee shall promptly provide a copy of its plans for offering any
Core Products under the specified Marks which it does not then offer.
3. In the event that Licensee shall fail to comply with its
obligations under Section III.1.2 above, or shall fail within six (6) months of
the effectiveness of the designation of any Additional Product or Additional
Service as a Core Product to offer (or plan to offer pursuant to a plan
submitted to and approved by Licensor and promptly thereafter implemented by
Licensee) such Core Product under the specified Marks in good faith, on a
nondiscriminatory, commercial basis in substantially all of the Licensed
Territory, Licensor shall be entitled to immediately amend Exhibit D hereto to
delete therefrom the Core Products not being offered by Licensee under the
specified Marks on a good faith, nondiscriminatory, commercial basis in
substantially all of the Licensed Territory, and shall be entitled to use or
license others to use the Marks in connection with such Core Products in the
Licensed Territory. With respect to the existing Core Products of nationwide
call delivery and nationwide roaming as further described in Exhibit D, Licensor
shall also be entitled to terminate this License Agreement pursuant to Section
XI.D. if, within six (6) months from the Effective Date, such Core Products are
not being offered by Licensee under the specified Marks on a good faith,
nondiscriminatory, commercial basis in substantially all of the Licensed
Territory.
J. Other Licenses, Compensation to Licensor
Licensor has and may continue to license the Marks, or any of them, to
third parties for use in connection with products or services other than Primary
Services, Core Products, Additional Products, or Additional Services. (For
example, Licensor has licensed one of the Marks to a third party marketer of
children's toys). Such licenses, subject to Licensee's rights set forth in
Section I, may permit use of the Marks by such third party licensees to promote
and sell products and services, other than Primary Services, Core Products,
Additional Services and Additional Products, within the Licensed Territory. As
part of such licensing arrangements, Licensor has, and may, from time to time
hereafter, receive fees or other consideration from third parties who provide
goods and services to licensees of the Marks in connection with
17
promotional or other programs arranged by Licensor. Licensee shall have no claim
or right with regard to any such fee or consideration or the arrangements giving
rise thereto.
K. Reseller Arrangements
In the event this License Agreement is being executed and delivered by
a licensee who is being licensed to resell Cellular Telephone Services or an
Alternate Wireless Service, it is anticipated that certain terms and conditions
applicable herein to providers of such services will need to be modified and
that certain additional terms and conditions may need to be added hereto to
accommodate the differences between the provision of such services directly by a
provider and by a reseller of such services. Accordingly, as necessary, in any
such event, the parties hereto shall complete and attach hereto an appropriate
Exhibit G to reflect such modified or additional terms and conditions and such
Exhibit G shall thereafter be deemed to be incorporated herein and made a part
hereof for all purposes.
IV. DUTIES OF LICENSEE
All duties of Licensee under this License Agreement are to Licensor,
and no other party is entitled to rely on, enforce or obtain relief for breach
of any such obligation, either directly or by subrogation. Licensee understands
and acknowledges that the high quality operation of its business under the Marks
is important to Licensee, Licensor and other licensees of the Marks in order to
maintain high operating standards and to protect the reputation of, and goodwill
associated with, the Marks. Toward that end, Licensee acknowledges and accepts
the following duties:
A. Quality of Service
1. Licensee agrees to provide high quality Primary Services
and Core Products and, to the extent provided, high quality Additional Services
and Additional Products, to its customers by, among other things, complying with
this License Agreement and the applicable Quality Standards Upon, six (6) months
written notice of the modification of or addition to the Quality Standards,
Licensee shall cause its Primary Services, Core Products, Additional Services or
Additional Products to comply therewith; provided, however,that Licensee shall
be entitled to adopt a plan reasonably acceptable to Licensor to discontinue the
offering of any Additional Services or Additional Products in lieu of complying
with the Quality Standards relating thereto, provided such Additional Products
or Additional Services do not constitute Core Products.
2. Licensee shall attain and maintain an overall minimum
customer satisfaction rating of at least 85% (or such increased level as may be
required pursuant to the provisions of this Section IV.A.) with regard to the
Licensed Territory as a whole (on a population weighted basis) and more than 70%
with respect to any market constituting a part thereof, with regard to
Licensee's Primary Services and Core Products. If Licensee has licenses
18
to use the Marks in more than one Licensed Territory pursuant to additional
license agreements with Licensor, Licensee shall be obligated to achieve an
overall minimum customer satisfaction rating of 85% (or any increased level
adopted) for all of such Licensed Territories (on a population weighted basis),
and more than 70% with respect to any market constituting a part thereof.
Licensor reserves the right to increase the overall minimum acceptable customer
satisfaction rating to a percentage greater than 85% if Licensor, in its
reasonable discretion, determines that such higher percentage is appropriate
given the technical state of the industry delivering Primary Services, Core
Products, Additional Products and/or Additional Services at such time; provided,
however, that the Advisory Council must approve any such increase in the minimum
acceptable customer satisfaction rating, and such increase shall not be
effective until the beginning of the next calendar year following the Advisory
Council's approval. In the event that a customer satisfaction survey conducted
by Licensor pursuant to Section III.C. of this License Agreement results in an
overall minimum customer satisfaction rating below 85% (or below any higher
percentage established by Licensor as described above), but more than 70%, in
Licensee's Licensed Territory or Licensed Territories as a whole (on a
population weighted basis), then Licensee will be assigned probation status
under Section XI.E. of this License Agreement and surveys will be commissioned
in the market(s) in the Licensed Territory or Licensed Territories, as the case
may be, which did not achieve a rating of at least,85% (or any higher
percentage established by Licensor), from time to time thereafter as Licensor
deems appropriate until Licensee has achieved an overall minimum customer
satisfaction rating of at least 85% (or any higher percentage established by
Licensor as described above) and the probation status is removed, or until this
License Agreement is terminated, as herein provided, whichever shall first
occur. Licensee agrees to pay the reasonable direct costs of conducting such
additional customer satisfaction survey(s).
3. During the Term, Licensee shall provide the Primary
Services and Core Products throughout the Licensed Territory, and shall
maintain, or cause others to maintain on its behalf, a sufficient number of
customer service locations and other facilities, including retail storefronts or
similar facilities, to permit customers and potential customers convenient
access to Primary Services, Core Products, Additional Products and Additional
Services, consistent with existing competitive conditions and in accordance with
the Quality Standards.
B. Legal Compliance
1. Licensee agrees to comply, at its own expense, with all
applicable laws, ordinances and regulations of federal, state, county or
municipal authorities. Licensee will also obtain and maintain, at its own
expense, all permits, approvals, licenses and franchises and shall make all
required filings, applications and reports to all government or administrative
entities or self regulatory organizations as shall be necessary, from time to
time, to provide those of the Primary Services, the Core Products, the
Additional Services or the Additional Products as Licensee may then be
providing, and to otherwise engage in business, generally, throughout the
Licensed Territory (collectively, the "Permits"). Without limiting the
generality of the foregoing, Licensee's obligation under this Section IV.B.
shall include the maintaining of Licensee's qualification to do business
throughout the Licensed Territory, and the filing of all
19
income and franchise tax returns with respect to Licensee's operations. In the
event that any of Licensee's material Permits is scheduled to expire during the
Term, including any renewal of such Term, Licensee agrees TO comply with all
requirements for extension of said Permit prior to such expiration. Licensee
shall notify Licensor in writing within five (5) days after receipt of any
notice from the FCC or any other governmental authority regarding an actual or
threatened termination or revocation of any Permit material to the provision of
the Primary Services, Core Products, Additional Products or Additional Services
by Licensee within the Licensed Territory, including any license by the FCC to
conduct business as a provider of telecommunications services or necessary to
construct facilities relating to telecommunications services, and shall within
such time provide a copy of any such notice to Licensor. In addition, Licensee
shall notify Licensor within five (5) days after becoming aware of the
commencement of any action, suit or proceeding, or the issuance of any order,
writ, injunction, award or decree of any court, agency or other governmental
instrumentality which could have a material adverse effect on the operation or
financial condition of Licensee's business as it relates to the Primary
Services, the Core Products, the Additional Services or the Additional Products.
2. To the extent that Licensee's business is dependent upon
one or more agreements with a provider of Primary Services, Core Products,
Additional Services or Additional Products for which Licensee acts as a
reseller, "Permits" shall include such contractual relationship and the license
granted hereunder shall be dependent upon the continuation thereof in good
standing.
3. Licensee represents and warrants that it possesses all
Permits necessary to the conduct of its business and to the business of
providing the Primary Services, Core Products, Additional Services and
Additional Products within the Licensed Territory, including, if applicable, any
Permits necessary to permit it to act as a reseller of services provided by
others.
C. Business Practices
Licensee shall maintain a competent, conscientious, trained
staff. Neither Licensor nor Licensee shall engage in any trade practice or other
activity which is harmful to the goodwill or reflects unfavorably on the Marks
or on the reputation of Licensee, Licensor, Licensee's business or other
licensees of Licensor, or which constitutes deceptive or unfair competition,
consumer fraud or misrepresentation.
D. Information to Licensor
1. Upon Licensor's request, subject to the confidentiality
requirements described in Section III.C., Licensee must, in connection with any
customer satisfaction survey Licensor elects to conduct in accordance with
Section III.C., promptly furnish to the Survey Company designated by Licensor a
complete and accurate customer list of all of its subscribers and customers for
its Primary Services, Core Products, Additional Products and Additional
Services, as a whole or separately, in a format reasonably prescribed by
Licensor, including computerized magnetic media, together with such reasonable
information which the Survey
20
Company shall require in connection with the performance of its duties. Licensee
hereby gives the Survey Company permission to contact any and all of its
subscribers and customers in conducting a customer survey to ascertain the
quality level of Licensee's services and products and obtain related market
research data in accordance with the methodology set forth in Exhibit F or as
Licensor may reasonably deem appropriate. Licensee shall promptly provide
Licensor with additional information reasonably requested by Licensor regarding
matters such as Licensee's legal status (for example, any Change in Control),
affiliated companies, dealers, agents, retailers, Primary Services, Core
Products, Additional Products and Additional Services being provided or sold
utilizing the Marks, Licensee's use of the Marks, including Incidental Use and
Potential Customer Confusion, and other matters which Licensor may reasonably
determine are relevant to Licensee's performance under this License Agreement.
2. At Licensor's request, Licensee shall promptly provide
Licensor with a copy of each Permit necessary or related to its business of
providing Primary Services, Core Products, Additional Services or Additional
Products using the Marks (with the financial details thereof deleted or redacted
if Licensee so chooses), together with any amendments, termination or other
notices relating thereto.
3. At Licensor's request, Licensee shall promptly provide
Licensor with a copy of Licensee's most recent financial statements for the most
recently completed fiscal year and any subsequent interim periods, including
reports of auditors, if any, and supporting schedules, relating to Licensee's
business of providing Primary Services, Core Products, Additional Services or
Additional Products using the Marks.
E. Voting by Licensees
Licensor shall be entitled, from time to time, during the
Term, or at any time with regard to a Term to commence in the future, to submit
a proposed amendment to this License Agreement and any Exhibits hereto, to all
of its licensees which have executed Revised Licenses, with a request that such
licensees indicate their approval or disapproval thereof by written ballot.
Unless licensees which have executed Revised Licenses with Licensor and which
are obligated to pay in excess of 50% of the aggregate of all Annual License
Fees payable by all similarly situated licensees shall vote against such
amendment, this License Agreement, and the applicable Exhibits hereto, shall be
amended as proposed by Licensor in the material submitted to the licensees.
Notwithstanding the foregoing, without the express written consent of Licensee,
no amendment to this License Agreement approved under this Section IV.E. shall,
with regard to prior time periods or events taking place prior to the adoption
thereof, increase Licensee's obligations to pay any amounts to Licensor or
otherwise undertake any obligations to Licensor or any other party. In addition,
no amendment to this License Agreement approved solely pursuant to this Section
IV.E. shall (i) modify the Licensed Territory, (ii) prohibit or prevent
Licensee from providing the Primary Services under the Marks in the Licensed
Territory, or (iii) permit Licensor to license others to use the Marks for
providing Alternate Wireless Services or Cellular Telephone Services in the
Licensed Territory. Any notice provided by Licensor hereunder requiring an
approval or disapproval of an amendment to this License Agreement or
21
any Exhibits hereto shall be delivered to Licensee in accordance with the
notice provisions of this License Agreement not less than ninety (90) days prior
to the proposed effectiveness thereof. Licensor shall be entitled to set forth
in any notice proposing an amendment to this License Agreement or any Exhibits
hereto an effective date more than ninety (90) days following the delivery of
notice with regard thereto. Licensees which fail to respond to a request by
Licensor to approve or disapprove of an amendment to this License Agreement or
any Exhibits hereto within sixty (60) days after delivery of the proposed
amendment shall be deemed to have consented to such amendment. This Section
IV.E. shall not modify or limit any of Licensor's other rights provided for in
this License Agreement, including but not limited to Licensor's rights to amend
Exhibits to this Agreement under Sections III or IV, to the extent permitted
therein, or to modify or impose the fees or other charges, to the extent such
modification is permitted, required of Licensee under Sections V or VIII hereof.
Only Licensor shall have the right to propose an amendment to this License
Agreement or any Exhibits under this Section IV.E.
F. Signage, Promotion
1. For each market in the Licensed Territory, Licensee shall,
at its own expense, cause the Cellular One Xxxx to be used or incorporated with
such reasonable prominence in such advertising and other business references to
Licensee as may be appropriate to create a clear impression, among the general
public, that Licensee is affiliated with the Cellular One program. Without
limiting Licensee's obligation to comply with the foregoing, Licensee shall, for
each market in the Licensed Territory, associate Licensee and the Cellular One
name in the telephone "yellow pages" and "white pages" directory listings, and
at least cause the Cellular One Xxxx to be used or incorporated on or in each of
the following, insofar as they relate to Licensee's business utilizing the
Marks:
(i) Licensee's customer billing statements and
the accompanying envelopes;
(ii) Licensee's advertising media, including without
limitation, print advertising, brochures, marketing materials,
point-of-sale materials, billboards and broadcast media such as radio
and television advertising, on line advertising, home pages on the
World Wide Web and other computer accessible information;
(iii) The greetings, introductions or opening
messages of Licensee's telephone operators, voice mail, telephone
answering machines and other call answering services, in response to
customer and prospective customer inquiries;
(iv) Licensee's stationery, business cards, notices
and other mailouts, and, to the extent practicable, any press or other
media coverage afforded Licensee; and
22
(v) Signs or displays on the exterior and interior of
each of Licensee's facilities which interface with customers or
prospective customers In the Licensed Territory.
2. To the extent required by this License Agreement, pursuant
to Sections III.A., VI.B., VI.D. or otherwise, Licensee shall, at its own
expense, modify its usage of the Marks and adopt tag lines, icons or similar
marks or variations, and modify the signage and other items described in Section
IV.F.1. above as may be appropriate, within one (1) year or such shorter period
as Licensor may reasonably require or as may be otherwise provided in this
License Agreement.
3. Licensee shall use the Cellular One Xxxx (or any xxxx
substituted therefor by Licensor) as the principal service xxxx or trademark, as
appropriate, designating Primary Services and Core Products sold or distributed
by it within the Licensed Territory and shall otherwise use the applicable Marks
in connection with Additional Products and Additional Services in the Licensed
Territory to the extent commercially reasonable and as required by this License
Agreement. Use of the Marks shall be strictly in accordance with the Graphic
Standards Manual as amended from time to time. Licensee shall only use those
Marks as are specified by Licensor in connection with each of the Additional
Products and Additional Services.
G. Dealers, Agents and Retailers
In the event that, pursuant to this License Agreement,
Licensee permits its authorized dealers, agents or retailers to use the Marks in
the Licensed Territory, such dealers, agents and retailers shall be subject to
the obligations set forth in this License Agreement and those imposed upon such
parties by Licensee; provided, however, that unless required by Licensee, such
dealers, agents and retailers need not necessarily comply with the specific
obligations of Sections IV.F.1.(i), IV.F.1.(iii) and IV.F.1.(iv) hereof in
connection with each dealers', agents' or retailers' use or incorporation of the
Marks on or in the items therein listed.
H. Additional Products and Services
1. Set forth on Exhibit D hereto under the headings
"Additional Products" and "Additional Services," respectively, are certain
products and services relating to the Primary Services with regard to which,
upon notice to Licensor, Licensee may promote or sell utilizing the Marks as
therein specified.
2. In the event that Licensee shall elect to use the Marks
within all or any part of the Licensed Territory in connection with one or more
of the specified Additional Products or Additional Services, Licensee shall
provide Licensor not less than thirty (30) days written notice of such intended
use, together with a description of Licensee's business and promotional plans
with regard thereto and the portion of the Licensed Territory to which such use
will relate.
23
I. Use of the Cellular One Trademark
In order to protect and enhance the Cellular One Xxxx and the
goodwill pertaining thereto, Licensee shall, consistent with Exhibit D, use the
Cellular One Xxxx only on or in connection with first class, high quality
telecommunications equipment and related devices further described as an
Additional Product on Exhibit D hereto (collectively, the "Wireless
Communications Equipment"). Any such Wireless Communications Equipment shall be
sold or distributed only in accordance with all applicable federal, state and
local laws, including, without limitation, all applicable FCC directives and
other industry standards issued from time to time by the CTIA, the Electronics
Industries Association and comparable industry groups, and which, if available
for the type of Wireless Communications Equipment in question, has earned a
certification seal issued by the CTIA. Licensee shall, upon execution of this
Agreement, and from time to time thereafter upon request by Licensor, promptly
furnish to Licensor, at no charge, a listing of all of the various types of
Wireless Communications Equipment sold or otherwise distributed by Licensee, and
upon which or in connection with which the Cellular One Xxxx is used. The nature
and quality of such Wireless Communications Equipment shall be subject to review
by Licensor to insure compliance with this Agreement.
J. Consumer Service Number
Licensee shall have the obligation to use and promote and a
nonexclusive right to make use of a toll free national consumer service number
designated by Licensor (the "Consumer Service Number"). as a toll free service
to Licensee's customers and prospective customers in the Licensed Territory, to
use the 1-800-CELL ONE Xxxx and marks associated therewith and to pay an annual
fee to Licensor described in Section V.E. and in accordance with the following
terms and conditions:
1. (a) Licensor will, from time to time, establish and
maintain a national consumer service telephone number, operated twenty-four
hours a day, seven days a week. Currently the number established by Licensor
is 1-800-CELL ONE (0-000-000-0000). Licensee shall arrange with a long
distance carrier (the "Long Distance Carrier") for a network-based routing
system to cause such calls to the Consumer Service Number from customers and
prospective/customers of Licensee in the Licensed Territory (including
customers of Licensee roaming from the Licensed Territory) to be
automatically (i) routed to Licensee, or to a designated center as further
described below or (ii) provided with a prerecorded intercept announcement or
(iii) routed as may be required pursuant to Section IV.J.3. or any agreement
entered into by Licensee pursuant thereto. All arrangements necessary for the
routing of calls to Licensee or the delivery of prerecorded intercept
announcements shall be made between Licensee and the Long Distance Carrier.
In no event will Licensor route calls made to the Consumer Service Number to
Licensee, or cause any such calls to be so routed. It is anticipated that
Licensee will provide customers and prospective customers calling the
Consumer Service Number with assistance, information and/or promotional
literature in response to inquiries concerning such matters as activation,
suspension or disconnection of service, service plans, promotions, billing,
pricing, roaming, dialing instructions, access numbers, feature codes, the
24
locations, hours of operation and telephone numbers of offices, authorized
repair facilities and sources for batteries, parts and accessories, and such
other matters as may be set forth in the 800 Number Supplement (hereinafter
defined).
(b) Licensor will provide Licensee with a supplement to
Exhibit E (the Quality Standards) and the Guide to Quality Operations
(collectively, the "800 Number Supplement"), containing requirements and
suggestions for the operation of the Consumer Service Number program, including
the services which Licensee must have the capability of offering during various
times to callers to the Consumer Service Number which are routed to the Licensee
by the Long Distance Carrier, and other materials as Licensor deems appropriate.
Licensor may from time to time, in its discretion, issue additional supplements,
modifications and additions to the Guide to Quality Operations or the 800 Number
Supplement. Licensor may, in its discretion, expand or introduce new features to
the Consumer Service Number program and may afford Licensee the opportunity to
participate therein by executing an addendum to this Agreement or other suitable
document.
(c) From time to time, at its sole election, Licensor may
select and designate a substitute telephone number to serve as the Consumer
Service Number and Licensee shall take such steps as shall be necessary to
utilize such substituted number in place of the prior telephone number serving
as the Consumer Service Number and shall cease any use of such prior number in
accordance with any schedule reasonably promulgated by Licensor with regard
thereto.
2. Licensee shall establish and maintain adequate staffing and
telephone capacity in relation to the subscriber base and call volume of the
Licensed Territory, in order to promptly and adequately receive and respond to
calls routed to Licensee through the Consumer Service Number; provided however,
that Licensee may establish a centralized location with such capabilities to
serve multiple markets for which Licensee has entered into a License Agreement
with Licensor, if applicable. Licensee agrees that it will not impose any
airtime charges or other charges upon the caller for calls made to the Consumer
Service Number, whether such calls are made by customers, prospective customers,
roamers or otherwise. Licensee shall cause its billing department or, if
applicable, use its best efforts to cause each of its billing companies or
providers of Primary Services, to nonrate calls to the Consumer Service Number
made from the Licensed Territory, and to delete any per diem roaming fees if
calls from the Licensed Territory to the Consumer Service Number are the only
roamer calls made during the twenty-four hour daily billing period. Licensee
shall offer credit card roaming capability for its customers, with respect to
the Licensed Territory, for the purpose of allowing call processing for
customers with validation problems when the serving switch in the home market is
not accessible.
3. Within thirty (30) days of the Effective Date of this
License Agreement, Licensee shall make appropriate arrangements with the Long
Distance Carrier for the routing of calls to the Licensed Territory and, in
conjunction therewith, shall be providing service to customers and prospective
customers in accordance with the Quality Standards and the Guide
25
to Quality Operations (including the 800 Number Supplement) twenty four hours a
day, three hundred sixty-five days a year. Licensee may phase in such customer
service operations over a period not to exceed six (6) months following the
Effective Date hereof, but within (30) days after the Effective Date of this
Agreement, Licensee shall, at a minimum, promptly accept and fully respond to
all calls routed to Licensee through the Consumer Service Number from 8:00 a.m.
to 6:00 p.m., local time, Monday through Friday, excluding national holidays.
During such times, the calls routed to the Licensed Territory by the Long
Distance Carrier must be handled by Licensee's own or contracted service
personnel (other than answering services) unless other arrangements satisfactory
to Licensor are made, and the various types of callers (customers, roamers,
prospects, etc.) must be provided with service respecting at least those
categories as set forth in the Guide to Quality Operations (including the 800
Number Supplement). Outside of such times, (i) Licensee has the option of
handling the calls with its own or contracted service personnel (other than
answering services), arranging for other licensees in good standing of the Marks
to handle the calls, arranging for third parties acceptable to Licensor to
handle the calls, or arranging for the calls to be answered by an automated
voice response system, with live operator backup preferred (although a response
system with the capability for the caller to leave a recorded message will be
acceptable); and (ii) not later than six (6) complete calendar months following
the Effective Date of this License Agreement, such callers must be provided with
service respecting at least those categories as set forth in the Guide to
Quality Operations (including the 800 Number Supplement) for such times.
4. Licensee shall at its own expense include the Consumer
Service Number in Licensee's telephone directory listings for the Licensed
Territory, including "White Pages" and "Yellow Pages" listings (under "Cellular
Telephones," "Mobile Telephones," "Radiotelephones" or other category denoting
telecommunications services and equipment, as appropriate), and in Licensee's
promotional and marketing materials. Licensee agrees to actively promote the
Consumer Service Number in the Licensed Territory, but may also utilize its own
toll free numbers or other numbers in the Licensed Territory.
5. Licensor shall in no event be liable by reason of any act
or omission of Licensee or any third party licensee in the conduct of its
business or for any claim or judgment arising therefrom or for any claim or
judgment by third parties (including without limitation, the Long Distance
Carrier, Licensee's customers, prospective customers, dealers, retailers,
agents, resellers, or the like) arising from or relating to the establishment
and the operation of the Consumer Service Number, and Licensee shall indemnify
and hold Licensor, Licensor's employees, the Partnership Partners and their
affiliates, and their respective officers, directors, employees and
stockholders, harmless from and against any and all claims and judgments, as
well as the costs, including attorneys' fees, of defending against them.
Licensee acknowledges that Licensor shall not be responsible for any direct,
consequential or incidental damages of any kind resulting from or relating to
the Consumer Service Number, the related program or the operation thereof, or
the acts or omissions of the Long Distance Carrier, including without
limitation, damages relating to possible loss of customers or prospective
customers by Licensee or its dealers, retailers, agents, resellers, or the like.
26
6. Licensee agrees to promptly provide the Long Distance
Carrier with such complete current and reserve cellular NPA/NXX listings and
other information and data as may be reasonably requested by the Long Distance
Carrier to permit the Long Distance Carrier to provide an efficient and
effective routing of calls and delivery of intercept announcements to Licensee
and to assure that calls which should be routed to other licensees of the
Consumer Service Number are not being affected by Licensee's arrangements with
the Long Distance Carrier. All payments and other similar arrangements which may
be necessary to permit the Long Distance Carrier to route calls or provide
intercept services and prerecorded announcements to callers shall also be the
responsibility of Licensee, shall be determined by and between Licensee and the
Long Distance Carrier, and Licensor shall have no obligation or liability
whatsoever with respect thereto. Licensee agrees to promptly provide directly to
Licensor and/or to cause the Long Distance Carrier to promptly provide to
Licensor such information as Licensor may from time to time reasonably request
in order to permit Licensor to protect the Marks and/or to ascertain Licensee's
compliance with Licensee's obligations under this Agreement.
7. In the event Licensee's agreement with the Long Distance
Carrier expires or is terminated for any reason with respect to any market in
the Licensed Territory, Licensee's rights with respect to the Consumer Service
Number and the 1-800-CELL ONE Xxxx shall automatically terminate with respect to
such market. In the event Licensor decides to discontinue the Consumer Service
Number or the related program, Licensor may terminate Licensee's rights with
respect to the Consumer Service Number and the 1-800-CELL ONE Xxxx upon ninety
(90) days prior written notice to Licensee.
8. The parties agree that Licensor is not offering herein to
resell 800 service or other telecommunications services, and no portion of the
annual Consumer Service Number Fee is compensation for any such resale. Licensee
shall have no right to resell 800 service using the Consumer Service Number to
any other person or entity. If Licensee chooses to permit its authorized
dealers, retailers or agents in the Licensed Territory to use the Consumer
Service Number and the 1-800-CELL ONE Xxxx, Licensee acknowledges, for itself
and on behalf of its dealers, retailers and agents, that the applicable calls by
callers to the Consumer Service Number will be routed by the Long Distance
Carrier to Licensee, and not to any such dealers, retailers and agents of
Licensee, and that the calls will be toll free and free of roaming and airtime
charges upon the callers as set forth above.
9. Licensee acknowledges and agrees that it shall have no
ownership interest in the Consumer Service Number, any telephone number, Xxxx or
acronym serving as or associated with a current or previous Consumer Service
Number or any agreements relating thereto, notwithstanding any actual or implied
agreements between Licensee and the Long Distance Carrier, any tariffs or
permits applicable or related to the Consumer Service Number or any contract or
course of dealing relating thereto. Without modifying the foregoing, Licensee
hereby grants Licensor an irrevocable power of attorney, which shall be coupled
with an interest, to act in Licensee's place and stead and to execute and
deliver any agreements, instruments, certificates, pleadings or the like
reasonably necessary to disclaim any interest by
27
Licensee in the Consumer Service Number, any telephone number, Xxxx or acronym
serving as or associated with a current or previous Consumer Service Number or
any agreements relating thereto, and to vest in Licensor full title thereto. In
addition, Licensee shall, from time to time, at the request of Licensor or the
Long Distance Carrier, promptly execute and deliver such further agreements,
instruments, certificates, pleadings and the like as Licensor shall reasonably
deem necessary to give effect to this Section IV.J.9.
V. FEES AND REPORTING
A. Application Fee
Upon execution of this License Agreement by Licensee, Licensee
shall pay to Licensor a nonrefundable application fee (the "Application Fee") of
five hundred dollars ($500.00) per market in the Licensed Territory; provided,
however, that no Application Fee with respect to a particular market shall be
payable in the event that this License Agreement is being executed as a renewal,
extension or modification of an outstanding Cellular One License Agreement
between Licensee and Licensor covering such market in the Licensed Territory or
in the event of a market transfer or Change of Control (the latter events being
subject, however, to the transfer fee described in Section V.H. hereof).
B. Annual License Fee
Licensee agrees to pay to Licensor an annual license fee (the
"Annual License Fee") based on the total population of each of the markets in
the Licensed Territory (the "Pops") as determined by the most recent population
estimates produced by an independent company selected in good faith by Licensor,
with a minimum Annual License Fee of three thousand dollars ($3,000.00) per
market in the Licensed Territory for each year during the Term. If the Effective
Date of this License Agreement or the commencement of a Subsequent Year is on or
before December 31, 1997, the Annual License Fee for the Initial Year or the
Subsequent Year, as the case may be, shall be equal to two cents ($0.02) per
person in the Licensed Territory, but not less than the foregoing minimum. If
the Effective Date of this License Agreement or the commencement of a Subsequent
Year is after December 31, 1997, the Annual License Fee for the Initial Year or
the Subsequent Year, as the case may be, shall be calculated in accordance with
Section V.E. below, but shall not be less than the foregoing minimum. The Annual
License Fee shall be due on each January 1 and payable on or before each January
31 of each Subsequent Year during the Term, for the full calendar year; provided
however, that the Annual License Fee for the Initial Year shall be paid upon
execution of this License Agreement by Licensee. Notwithstanding the foregoing,
if the Initial Year commences on a day other than January 1, the Annual License
Fee for the Initial Year (including the foregoing minimum fee, if applicable)
shall be prorated to reflect the portion of that calendar year included within
the Initial Year. The Annual License Fee will not be prorated or refunded in
whole or in part under any other circumstances; provided, however, that upon the
normal expiration of this License Agreement at the end of the Term or any
renewal Term (but in no other event, including without
28
limitation, upon the voluntary or involuntary termination of this License
Agreement for any reason), Licensor agrees to refund a prorated portion of the
Annual License Fee reflecting that portion of that calendar year remaining after
the date of expiration, less any set off for any other fees owing to Licensor.
C. Annual Advertising Fee
Licensee agrees to pay to Licensor's Cellular One Promotional
Fund an annual advertising fee (the "Annual Advertising Fee") based upon the
population estimates described in Section V. B. above. If the Effective Date of
the License Agreement is on or before December 31, 1996, the Annual Advertising
Fee for the Initial Year shall be equal to five cents ($0.05) per person in the
Licensed Territory. If the Effective Date of this License Agreement or the
commencement of a Subsequent Year is between January 1, 1997 and December 31,
1997, then the Annual Advertising Fee for the Initial Year or Subsequent Year,
as the case may be, shall be equal to six cents ($0.06) per person in the
Licensed Territory. If the Effective Date of this License Agreement or the
commencement of a Subsequent Year is between January 1, 1998 and December 31,
1998, then the Annual Advertising Fee for the Initial Year or Subsequent Year,
as the case may be, shall be equal to seven cents ($0.07) per person in the
Licensed Territory. If the Effective Date of this License Agreement or the
commencement of a Subsequent Year is after December 31, 1998, then the Annual
Advertising Fee for the Initial/Year or the Subsequent Year, as the case may
be, shall be calculated in accordance with Section V.E. below. The Annual
Advertising Fee shall be due on each January 1 and payable on or before each
January 31 of each Subsequent Year during the Term, for the full calendar year;
provided, however, the Annual Advertising Fee for the Initial Year shall be paid
upon execution of this License Agreement by Licensee. Notwithstanding the
foregoing, if the Initial Year commences on a day other than January 1, the
Annual Advertising Fee for the Initial Year shall be prorated to reflect the
portion of that calendar year included within the Initial Year. The Annual
Advertising Fee will not be prorated or refunded in whole or in part under any
other circumstances. For any Initial Year or Subsequent Year beginning on or
before January 1, 1998, if Licensee can demonstrate to the satisfaction of
Licensor that Licensee had less than three hundred thousand (300,000) billable
minutes of air time for each month in the preceding calendar year in a market in
the Licensed Territory, Licensee shall not be obligated to pay the Annual
Advertising Fee with respect to such market for such Initial Year or Subsequent
Year, as the case may be. Licensor agrees to accept, and may require, the bona
fide report of Licensee's independent outside auditing firm as appropriate
confirmation that Licensee has less than the three hundred thousand (300,000)
billable minutes of air time for each month as described above. The foregoing
exemption from payment of the Annual Advertising Fee shall in no event extend
beyond the Annual Advertising Fee due for 1998. To the extent that geographic,
demographic or social factors (such as a location of a market outside of the
continental U.S. or the use in a particular market in the Licensed Territory of
a dominant language other than English) limit the effectiveness of Licensor's
promotional efforts with respect to such market in the Licensed Territory,
Licensor may, but shall not be obligated to, consider an adjustment to the
Annual Advertising Fee payable under this Section V.C. or
29
adjusting its promotional activities to improve the effectiveness thereof in
such market in the Licensed Territory.
D. Annual Administrative Fee
From time to time, upon not less than thirty (30) days written
notice to Licensee, Licensor shall be entitled to levy, and Licensee shall pay,
a nonrefundable annual administrative fee (the "Annual Administrative Fee"), not
to exceed, each calendar year, one-half of one cent ($0.005) per person in the
Licensed Territory as determined in a manner consistent with that applied to the
determination of the Annual License Fee, in the event that Licensor determines
that such a fee is necessary to defray Licensor's administrative costs,
including costs associated with professional fees and expenses, incurred in
connection with performing Licensor's duties under this License Agreement and
otherwise protecting and promoting the Marks and assuring that the Quality
Standards continue to be consistent with changing market conditions and
technological change. In the event that Licensee provides Primary Services as a
reseller for more than one provider of Cellular Telephone Services or any form
of Alternate Wireless Service, Licensor shall be entitled to receive an
additional Annual Administrative Fee (or such part thereof as Licensor shall
deem appropriate) with regard to each such reseller relationship, reflecting the
increased costs of conducting customer surveys and otherwise monitoring
Licensee's performance under this License Agreement.
E. Escalation of License and Advertising Fees
In addition to any other increases in the Annual License Fee
and the Annual Advertising Fee which are permitted herein, Licensor may, in its
sole discretion, increase the Annual License Fee payable for any Initial Year or
Subsequent Year commencing on or after January 1, 1998, and/or increase the
Annual Advertising Fee payable for any Initial Year or Subsequent Year
commencing on or after January 1, 1999, by amounts commensurate with the
increases In the Consumer Price Index or media expenses, as the case may be, in
accordance with the following:
1. Annual License Fee for the applicable Initial Year or
Subsequent Year (subject to the minimum Annual
License Fee of $3,000.00 per market in the Licensed
Territory)=
$0.02 X CPI-2 X Pops
-----
CPI-1
where:
(a) "CPI" shall mean the monthly National Consumer Price
Index for All Urban Consumers, U.S. City Average (All Items; 1982-84 equals 100)
issued by the U.S. Department of Labor, Bureau of Labor Statistics, or its
successor agency, or if such index is no longer in effect, the successor index
thereto;
30
(b) "CPI-1" shall mean the monthly CPI for the month of
June, 1996; and
(c) "CPI-2" shall mean the higher of (i) CPI-1 or (ii)
the monthly CPI for the latest calendar month which ends at least six (6) months
before the commencement of the applicable Initial Year or Subsequent Year for
which the adjustment of fee(s) is being computed.
2. Annual Advertising Fee for the applicable Initial
Year or Subsequent Year=
$0.07 X MC-2 X Pops
----
MC-1
where:
(a) "MC-1" shall mean the actual media buy liabilities
incurred by Licensor in connection with Licensor's obligations and activities
under Section VIII of this License Agreement for the immediately preceding
annual period;
(b) "MC-2" shall mean the higher of (i) MC-1 or (ii) the
media buy liabilities Licensor would incur in the following annual period if it
engaged in the activities and purchased the goods and services giving rise to
the media buy liabilities constituting MC-1. In making the determination
required by the preceding sentence, Licensor shall utilize the "netcosts-TM-"
reports publication describing Broadcast Network, Cable Network and Syndication
CPM and CPP projections published by Xxxxxx, Xxxxxxxx & Xxxxxx, Inc., or any
successor or equivalent index generally utilized by the industry to estimate
future costs associated with promotional activities.
F. Consumer Service Number Fee
During such time as Licensor makes the Consumer Service Number
program available to licensees, Licensee shall pay to Licensor an annual
Consumer Service Number fee (the "Consumer Service Number Fee") equal to one
thousand dollars ($1,000.00) for each MSA and five hundred dollars ($500.00) for
each RSA constituting a part of the Licensed Territory, subject to a maximum fee
payable under this Section V.F. of thirty thousand dollars ($30,000.00) with
respect to the Licensed Territory or all of Licensee's Licensed Territories
under other License Agreements with Licensor. The Consumer Service Number Fee
shall be due on each January 1 and payable on or before each January 31 of each
Subsequent Year during the Term, for the full calendar year; provided however,
the Consumer Service Number Fee for the Initial Year shall be paid upon
execution of this License Agreement by Licensee. Notwithstanding the foregoing,
if the Initial Year commences on a day other than January 1, the Consumer
Service Number Fee for the Initial Year shall be prorated to reflect the portion
of that calendar year included within the Initial Year. The Consumer Service
Number Fee will not be
31
prorated or refunded in whole or in part under any other circumstances. The
Consumer Service Number Fee shall be in addition to any other charges or fees
that may be payable by Licensee to any Long Distance Carrier for the Consumer
Service Number program, as contemplated by Section IV.J. hereof. In addition to
the Consumer Service Number program, Licensor may establish similar programs for
other forms of wireless telephony (the "Other 800 Programs"). To the extent that
the Primary Services or Core Products include such forms of wireless telephony,
Licensee shall participate in the Other 800 Programs designed therefor. Licensor
shall be entitled to receive fees from Licensee for the Other 800 Programs
calculated in a similar manner as those for the Consumer Service Number program.
G. Additional Fees
From time to time following the date hereof, Licensor may
propose, pursuant to Section IV.E. hereof, changes to or the implementation of
one or more periodic fees to be payable by licensees with regard to the Primary
Services, Core Products, Additional Products or Additional Services, or other
fees deemed appropriate by Licensor. Upon approval thereof in accordance with
Section IV.E., such fees shall become an obligation of Licensee hereunder.
H. Special Licensee Related Expenses
Licensor shall be entitled to levy, and Licensee shall
promptly pay, a fee of not less than five hundred dollars ($500.00) per market
with regard to any Change of Control of Licensee or assignment by Licensee of
its rights and obligations hereunder (including any transfer or Change of
Control of a market constituting part of the Licensed Territory) or upon any
other assignment, transfer, pledge, Change of Control or other transaction
contemplated or permitted under Article X.
I. Payments, Interest on Late Payments
All fees and charges payable under this License Agreement
shall be payable in good funds at Licensor's address specified herein, or at
such other address as Licensor shall from time to time designate in writing.
Notwithstanding any other provision of this Article V, Licensor shall be
entitled for reasons of administrative convenience or otherwise to defer the
date by which any fee or charge payable by Licensee hereunder may be due. No
such deferral shall be a waiver of any of Licensor's rights hereunder. If
payment of any Application Fee, Annual License Fee, Annual Advertising Fee,
Consumer Service Number Fee, Annual Administrative Fee or other fee or charge
under this License Agreement is overdue, Licensee shall pay Licensor, in
addition to the overdue amount, interest on such overdue amount from the date it
was payable until paid at the rate which is two (2) points above the prime rate
published by the Wall Street Journal on the date payment was due, or the maximum
rate permitted by applicable law, whichever is less. Entitlement to such
interest shall be in addition to any other remedies Licensor may have.
32
VI. MARKS
A. Ownership of Marks
Licensor is the owner of all right, title and interest in and
to the Marks (which shall include for the purposes of this Section VI. all of
the permits and contractual or other arrangements (including registrations of
trademarks, service marks and domain names) relating to ownership or control of
the Marks, the Consumer Service Number and the like). No sublicense by Licensee
pursuant to Sections IV.G. or X.C. shall create any ownership interest in the
Marks in Licensee or any sublicensee thereof nor any right by Licensee to
sublicense use of the Marks in the future.
B. General Use
With respect to Licensee's use of the Marks pursuant to this
License Agreement, Licensee acknowledges and agrees to the following:
1. Licensee shall use only the Marks designated by Licensor
and shall use them only in the manner authorized and permitted by Licensor
herein, and only in accordance with the Graphic Standards Manual. Without
limiting the generality of the foregoing, Licensee shall comply with Licensor's
guidelines and directives (i) for use of certain Marks with specified Additional
Products and Additional Services, and (ii) concerning the use of the Marks or
derivatives thereof in, or as a part of, the domain name of any World Wide Web
pages or the names of any similar Internet locales or addresses owned by or on
behalf of Licensee.
2. Except to the extent permitted as Incidental Use, Licensee
shall use the Marks only in connection with providing Primary Services, Core
Products, Additional Services and Additional Products in the Licensed Territory,
in accordance with the Quality Standards and as otherwise set forth in this
License Agreement.
3. Licensee shall identify the Licensor as the registered
owner of the Marks in such ways as Licensor may direct, including but not
limited to the identification of Licensor as such on Licensee's invoices, order
forms, receipts and contracts.
4. Except as provided in Section IV.G. above and Section X.C.
below, Licensee shall have no right to sublicense the Marks to any other person
or entity, and Licensee shall have no right to allow its resellers, if any, to
make use of the Marks. Any use by a dealer, retailer or agent under Section
IV.G. or by an Affiliate under Section X.C. shall be consistent with Licensee's
rights and responsibilities hereunder with respect to the use of the Marks and,
in no event, shall any such permitted use exceed or extend beyond Licensee's
rights hereunder to use the Marks. Licensee agrees to monitor and be responsible
for the use of the Marks by its agents, retailers and dealers and its Affiliates
and to promptly provide or cause to be provided to Licensor upon request, from
time to time, such reasonable information concerning the use of the Marks by
such dealers, retailers and agents and Affiliates to permit Licensor to
ascertain
33
Licensee's compliance hereunder. From time to time upon the reasonable request
of Licensor, Licensee shall promptly supply Licensor with a list of dealers,
retailers, agents and Affiliates authorized to use the Marks and/or promptly
confirm whether any particular dealers, retailers, agents or Affiliates remain
authorized and in good standing with respect to use of the Marks.
5. Licensee's right to use the Marks is limited to the uses
specifically authorized under this License Agreement.
6. Licensee shall not use the Marks or any of their
derivatives, or any marks confusingly similar thereto, as part of Licensee's
corporate or other legal name. Licensee and any dealers, retailers or agents
designated under Section IV.G. or Affiliates designated under Section X.C. may
file and maintain trade name or fictitious name registrations in the
jurisdictions within the Licensed Territory where legally required or otherwise
appropriate to reflect the fact that Licensee is doing business as "Cellular
One." If other licensees desire to file and maintain such a trade name or
fictitious name registration pursuant to a license agreement with Licensor,
Licensee shall consent or otherwise cooperate with Licensor and such licensees
in meeting the state or local requirements to permit such trade or fictitious
name registrations to coexist. Licensee shall execute any documents deemed
necessary or desirable by Licensor or its counsel to assist Licensor in the
protection or registration of the Marks or to maintain or defend Licensor's
title thereto, or their continued validity and enforceability.
7. Licensee shall promptly notify Licensor of any suspected
infringement of, or challenge to the validity, registration, or Licensor's
ownership of the Marks, which occurs in the Licensed Territory, or elsewhere,
should Licensee become aware. Licensor agrees, at its sole cost and expense, to
institute or otherwise defend proceedings as may be appropriate to protect the
Marks, including, to the extent necessary, defense of such proceedings following
termination of this License Agreement. In connection with any such proceedings,
Licensee agrees to execute any and all documents and to do whatever reasonable
acts and things as may, in the opinion of counsel for Licensor, be necessary or
advisable to assist Licensor in carrying out the prosecution or defense, and
Licensor agrees to reimburse Licensee for all direct costs incurred by Licensee
in doing these acts and things, except that Licensee shall bear the salary costs
of its employees. Licensor shall have the sole right to institute, defend and
direct proceedings relating to the Marks and Licensee shall not file or
institute any proceedings relating to the Marks without the prior written
consent of Licensor. In the event that Licensee does file or institute any
proceedings relating to the Marks, Licensee shall promptly supply Licensor with
copies of any and all papers and materials relating to such proceedings,
together with such information relating thereto as Licensor may reasonably
request. Notwithstanding anything to the contrary in Section VI.B., and whether
or not Licensor undertakes the prosecution or defense of a legal proceeding
relating to one or more of the Marks, Licensor's liability for damages and
losses to Licensee relating to use of one or more of the Marks (including any
loss resulting from Licensor's loss of title or ownership of the Marks or the
rights thereto) shall be limited to the amount of the Application Fee plus the
Annual License Fee paid by Licensee under this License Agreement for the
market(s) in which such liability is determined, for the year during which such
liability is determined.
34
8. The Marks are valid and serve to identify the Primary
Services, the Core Products, the Additional Services and the Additional Products
provided by those who are authorized to operate under the Marks. Licensee shall
not directly or indirectly contest the validity, registration or Licensor's
ownership of the Marks, any of Their derivatives, any of the icons or other
marks owned by Licensor, and Licensee shall not directly or indirectly apply for
or otherwise seek to register as a trademark, service xxxx or design any xxxx or
other designation which incorporates, which is the same as or confusingly
similar to, or which may dilute Licensor's rights in and to, any of the Marks or
their derivatives, any of the icons or other marks owned by Licensor.
9. Licensee's use of the Marks, and the use thereof by its
agents, retailers, dealers and Affiliates, if any, pursuant to this License
Agreement does not give Licensee or any agent, retailer, dealer or Affiliate,
any ownership interest or other interest in or to the Marks, except the license
granted in this License Agreement. Any and all goodwill arising from use of the
Marks shall inure solely and exclusively to the benefit of Licensor, and upon
expiration or termination of this License Agreement and the license granted by
it, no monetary amount shall be assigned as attributable to any goodwill
associated with use of the Marks by Licensee or its agents, retailers, dealers
or Affiliates.
10. Licensor has and retains the following rights, among
others:
(i) To use the Marks itself, in connection with
local, regional and national advertising and promotion, including
conducting activities designed to enhance the goodwill associated with
the Marks, and, subject to the provisions of Section I hereof, with
directly or indirectly selling products and services (including
telecommunications products and services) both within and outside the
Licensed Territory;
(ii) To grant licenses for use of the Marks in
addition to those licenses already granted to existing licensees of the
Marks;
(iii) To use the Marks in any manner reserved for
Licensor pursuant to Section I; and
(iv) To create derivatives of the Marks and exploit,
promote and license such derivatives.
11. In the event that any of the Marks or icons, including any
trademarks, service marks and design logos adopted after execution of this
License Agreement which become Marks, can no longer be used, Licensor reserves
the right to provide a substitute xxxx or design with reasonable notice to
Licensee.
35
C. INCIDENTAL USE
1. For the purposes of this License Agreement, the promotion,
sale and delivery of Primary Services, the Core Products, Additional Services
and Additional Products in accordance with this Section VI.C. shall be
considered "Incidental Use" of the Marks.
2. During the Term, and subject to the other provisions of
this License Agreement, Licensee shall be entitled to conduct its business of
providing Primary Services, Core Products, Additional Services and Additional
Products throughout the Licensed Territory, without the necessity of abandoning
or failing to serve any part of the Licensed Territory because such business
might become known to, or because Licensee might from time to time sell products
or services to, persons or businesses resident or located outside of the
Licensed Territory. Licensee shall not be prohibited by the terms of this
License Agreement from promoting Primary Services outside of the Licensed
Territory to the extent necessary to provide Primary Services in accordance with
the Quality Standards throughout the Licensed Territory. In addition, except
that Licensee shall not specifically direct its promotional activities to
potential customers outside of the Licensed Territory, Licensee shall be
entitled to utilize regional or other media in connection with promoting its
Primary Services, Core Products, Additional Services and Additional Products
within the Licensed Territory. Licensee shall not adopt promotional pricing or
otherwise seek to distribute Primary Services, Core Products, Additional
Services or Additional Products outside of the Licensed Territory, but shall not
be precluded from doing business with persons or entities it knows to be
resident outside of the Licensed Territory.
3. This Section VI.C. does not entitle Licensee to utilize the
Marks for products or services other tHan Primary Services, Core Products,
Additional Services and Additional Products, nor does it allow use of the Marks
by Licensee outside of the Licensed Territory except strictly in accordance with
Section VI.C.2. above. Licensor shall have the sole right to restrict Licensee's
Incidental Use of the Marks at any time and in such manner as Licensor shall
determine necessary or appropriate to prevent such Incidental Use from
breaching, infringing upon, or otherwise conflicting with, the rights of any
other current or future licensee of the Xxxx(s). Licensee's Incidental Use of
the Marks may also be restricted under Section VI.D. below, notwithstanding this
Section VI.C., to avoid or mitigate Potential Customer Confusion (as
subsequently defined).
D. POTENTIAL CUSTOMER CONFUSION
1. Notwithstanding any other provision of this Section VI. to
the contrary, in the event that as a result of economic, demographic or
technological changes within or affecting the Licensed Territory from and after
the date of this License Agreement, Licensor reasonably determines that actual
or potential customers of another licensee of the Marks, or any of them, are or
are likely to consider Licensee to be, or to be affiliated with, such other
licensee of the Marks or not readily distinguishable therefrom (such
circumstances being referred to as "Potential Customer Confusion"), Licensor
shall be entitled to modify the provisions of this
36
License Agreement and any Exhibit hereto for the purpose of reducing the
circumstances giving rise to the Potential Customer Confusion.
2. In seeking to reduce Potential Customer Confusion, Licensor
shall consider requiring providers (including Licensee) of products or services
which are the source of Potential Customer Confusion to adopt tag lines or
otherwise differentiate such products or services before amending this License
Agreement in a manner that would require a material modification in the conduct
of Licensee's telecommunications business relating to the Marks.
3. Without limiting the generality of the foregoing, and
without limiting any other rights which Licensor may have hereunder with respect
to Additional Products or Additional Services, Licensor shall be entitled, with
or without the consent of Licensee, to reduce the size of the Licensed Territory
with regard to Additional Products or Additional Services or to delete or modify
the description of any Additional Product or Additional Service set forth on
Exhibit D hereto for the purpose of mitigating or eliminating Potential Customer
Confusion. Upon such reasonable written notice to Licensee as Licensor in its
discretion determines, but in no event to exceed sixty (60) days, regarding the
existence of Potential Customer Confusion resulting, in whole or in part, from
Licensee's promotional activities. Licensee shall modify such promotional
activities to the extent reasonably necessary to prevent or mitigate, to the
extent possible, the continuation of events or circumstances previously giving
rise to Potential Customer Confusion.
VII. CONFIDENTIAL INFORMATION
A. DEFINITION
Any and all information, knowledge, know-how, and techniques
which Licensor or Licensee designates as confidential shall be deemed
"Confidential Information" for purposes of this License Agreement, except:
1. Information which either party can demonstrate was known to
it prior to disclosure thereof by the other party; or
2. Information which, at or after the time of disclosure by
one party to the other, had become or later becomes a part of the public domain,
through publication or communication by others through no fault of the party
receiving the information.
B. PROHIBITIONS
Licensor and Licensee each agree that it will use its best
efforts, during the term of this License Agreement and for one year following
expiration or termination of this License Agreement, to prevent the
communication or divulgence, to any other person, partnership, association,
corporation or business enterprise of any Confidential Information which may be
37
communicated to it or of which it may be apprised pursuant to this License
Agreement. Licensor shall be deemed to have used its best efforts to prevent
such communication or divulgence if it has distributed guidelines to its
employees in an effort to maintain an information separation between Licensor
and the Partnership Partners and their affiliates, and, specifically, it has
instructed its employees not to divulge any Confidential Information, including
customer information, to the Partnership Partners or their affiliates, and shall
have obtained the executed confidentiality agreements referred to in Section
VII.C. from those persons designated in such Section. In circumstances where
Licensee is in direct competition with one of the Partnership Partners or their
affiliates in any one or more of the market(s) in the Licensed Territory,
Licensor will instruct its employees that no information regarding Licensee's
business of providing Primary Services, Core Products, Additional Products or
Additional Services in that market should be disclosed to that Partnership
Partner or its affiliates. The parties agree that statistical performance
information regarding licensees of the Marks which does not identify individual
markets may be reported to the Partnership Partners and their affiliates and
shall not be considered Confidential Information. Notwithstanding the foregoing,
either party to this License Agreement and the Partnership Partners and their
affiliates may disclose any Confidential Information which any such party may be
legally required to disclose to a government agency or in the context of
litigation or arbitration.
C. LICENSOR CONFIDENTIALITY AGREEMENTS
Licensor will execute, and will cause its employees, agents
and representatives, who are reasonably expected to have access to Confidential
Information of Licensee to execute, an appropriate confidentiality agreement,
which shall provide that any Confidential Information of Licensee made available
to Licensor, Licensor's employees, agents or representatives, pursuant to this
License Agreement, will be kept confidential by all such persons.
D. CONSEQUENCES OF BREACH
Licensor and Licensee each acknowledges that any failure to
comply with this Section VII will cause the other party irreparable injury, and
each party agrees to pay all court costs and reasonable attorneys' fees incurred
by the other party in obtaining specific performance of, or an injunction
against violation of, this Section VII.
VIII. ADVERTISING
Recognizing the value of advertising and the importance of the
standardization of advertising programs to the furtherance of the goodwill and
public image of the Marks, the parties agree as follows:
38
A. LICENSEE'S ADVERTISING
All advertising and promotion by Licensee in any manner or
medium must be conducted in a dignified manner and must conform to the written
and graphic guidelines specified by Licensor from time to time, including the
Graphic Standards Manual. Licensee shall display or otherwise employ the Marks
in the manner prescribed by Licensor on all signs and all other advertising and
promotional materials used in connection with Licensee's business, to the extent
relating to Primary Services, Core Products, Additional Services and Additional
Products. If requested by Licensor, Licensee at its own expense shall promptly
provide to Licensor photocopies or other photographic, mechanical, magnetic or
other representations of all print advertisements and promotional materials,
radio/television advertising sequences, graphical interface presentations and
other media presentations using the Marks which Licensee has used at any time
during the six (6) months preceding Licensor's request.
B. MATERIALS PROVIDED BY LICENSOR
Licensor may provide from time to time, in its sole
discretion, advertising and promotional plans and materials, including without
limitation, newspaper mats, television and radio tapes, graphical interface
files, promotional brochures and sales aids. Licensee may use all or any of
these materials in its sole discretion
C. CELLULAR ONE PROMOTIONAL FUND, OTHER ADVERTISING FUNDS
Licensor has established, and Licensee agrees to
participate in a fund for national, local and regional advertising and
promotional and other public programs and activities (the "Cellular One
Promotional Fund" or the "Fund") for licensees of the Marks. Licensor shall
have the right to determine, in accordance with Section V.C. hereof, the
amount of contributions to be made by licensee with respect thereto for any
year or years during the Term hereof, including any renewal Term. Licensee
agrees to make contributions to the Cellular One Promotional Fund as required
hereunder and under Section V.C. hereof, and agrees that the Fund is to be
maintained and administered by Licensor or its designee as follows:
1. Licensor or its designee shall direct all advertising
and/or promotional programs with sole discretion over the concepts, materials,
and media used in such programs and the placement and allocation thereof.
Licensee agrees and acknowledges that the Cellular One Promotional Fund is
intended to maximize general public recognition, acceptance, and use of the
Marks for the benefit of all licensees of the Marks, and that Licensor or its
designee are not obligated, in administering the Fund, to undertake expenditures
for Licensee which are equivalent or proportionate to Licensee's contribution,
or to ensure that any particular licensee benefits directly or PRO RATA from
expenditures by the Fund.
2. The Cellular One Promotional Fund, all contributions
thereto, and any interest earnings thereon, shall be used for the purpose of
meeting any and all costs of administering, researching, directing, and
preparing advertising and/or promotional activities
39
including the cost of preparing and conducting television, radio, magazine,
World Wide Web, e-mail and newspaper advertising campaigns; direct mail and
outdoor billboard advertising; marketing surveys and other public relations
activities; use of advertising agencies to assist therein; promotional brochures
and other marketing materials for licensees of the Marks; and indirect costs,
including reasonable allocation of Licensor's administrative, personnel and
overhead expenses, associated with the implementation of advertising programs,
such as equipment costs and similar costs relating to special national or
regional programs or other similar programs contemplated by Section III.E. All
reasonable costs incurred by Licensor or charged to Licensor by third parties
for the production and dissemination of such advertising and promotional
materials may be charged to the Fund.
3. Licensee shall contribute to the Cellular One Promotional
Fund in accordance with Section V.C. All sums paid by licensees of the Marks to
the Fund shall be maintained in an account separate from the other monies of
Licensor and shall not be used to defray any of Licensor's administrative
expenses, except for such reasonable administrative costs and overhead as
Licensor may incur in activities reasonably related to the administration or
direction of the Fund and advertising programs for licensees of the Marks, and
as further set forth in Section VIII.C.2. Except as set forth in this Section
VIII.C., the Fund and any incidental earnings shall not otherwise inure to the
benefit of Licensor. Licensor or its designee shall maintain separate
bookkeeping accounts for the Fund.
4. It is anticipated that all Licensee contributions to, and
incidental interest earned by, the Cellular One Promotional Fund shall be
expended for advertising and/or promotional purposes during the taxable year
within which the contributions and earnings are received. If, however, excess
amounts 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.
5. The Cellular One Promotional Fund is not and shall not be
an asset of Licensor or its designee. A statement of the operations of the Fund
as shown on the books of the Fund shall be prepared annually by an independent
certified public accountant selected by Licensor and shall be made available to
Licensee upon written request.
6. Although the Fund is intended to be of perpetual duration,
Licensor maintains the right to terminate the Fund. The Fund shall not be
terminated, however, until all monies in the Fund have been expended for
advertising and/or promotional purposes or returned to contributors on the basis
of their respective contributions.
In addition, Licensor may establish and Licensee shall
contribute to one or more separate advertising funds for the purpose of
promoting types or groups of Primary Services, Core Products, Additional
Products or Additional Services, utilizing all or part of the fees collected
pursuant to Section V.C. hereof. Except as specifically provided by Licensor
when establishing such fund, or as may be permitted under this License
Agreement, such additional funds shall be
40
subject to provisions identical to those applicable to the Cellular One
Promotional Fund described herein.
D. PRICE DISCRETION
Licensee shall have the right to sell its products and offer
services at any price Licensee may determine, and shall in no way be bound by
any price which may be recommended or suggested by Licensor.
IX. INSURANCE
A. REQUIREMENT
Licensee shall promptly procure, and shall maintain in full
force and effect at all times during the Term of this License Agreement, at
Licensee's expense, an insurance policy or policies protecting Licensee,
Licensor, and the Partnership Partners, and their respective affiliates, agents,
officers, directors, shareholders, and employees, against any demand or claim
with respect to personal injury, death, or property damage, or any loss,
liability, or expense whatsoever arising or occurring upon or in connection with
Licensee's business of providing and goods or services utilizing or in
connection with the Marks. Licensor and the Partnership Partners, and their
respective affiliates, agents, officers, directors, shareholders, and employees,
shall be named additional insureds in each such policy.
B. MINIMUM COVERAGE
The policy or policies shall be written by an insurance
company with an Xxxxxx X. Best rating of A or A+, or such other insurance
company as Licensor may reasonably approve, and shall include, at a minimum,
such coverages and policy limits as may reasonably be specified by Licensor from
time to time, which coverages may include, without limitation, comprehensive
general liability insurance, including personal injury, as well as comprehensive
automobile liability coverage for both owned and non-owned vehicles, and
property damage liability coverage, naming Licensor and the Partnership
Partners, and their respective affiliates, agents, officers, directors,
shareholders and employees, as additional insureds in each such policy or
policies. Until such time as Licensor shall in good faith determine that
economic or other circumstances affecting the Cellular One license program
require increased insurance coverage, the following minimum insurance
requirements shall be applicable.
1: General liability: $1,000,000 per occurrence or $2,000,000
in the aggregate;
2. Personal liability: $1,000,000;
3. Property damage: $1,000,000;
41
4. Automobile liability: $1,000,000 per occurrence for owned
and operated vehicles;
5. Workers' compensation/Employers' liability: $500,000 policy
limit;
6. Disease: $500,000; and
7. Accident: $500,000
C. CERTIFICATES OF INSURANCE
Within thirty (30) days after this License Agreement is
executed, and thereafter at least thirty (30) days prior to the expiration of
any such policy, Licensee shall deliver to Licensor Certificates of Insurance
evidencing the proper coverage with limits not less than those required
hereunder. All Certificates shall expressly provide that not less than thirty
(30) days prior written notice shall be given Licensor in the event of material
alteration to, or cancellation of, the coverages. evidenced by such
Certificates.
X. TRANSFER OF INTEREST
A. TRANSFER BY LICENSOR
Licensor shall have the right to transfer or assign all or any
part of its rights or obligations herein to any person or legal entity. If
Licensor's assignee assumes all of the obligations of Licensor under this
License Agreement and sends written notice of the assignment so attesting,
Licensee shall promptly execute a general release of Licensor and the
Partnership Partners, and any affiliates thereof, from any claims against or
liabilities of Licensor, the Partnership Partners or such affiliates arising
under this License Agreement.
B. TRANSFER AND PLEDGE BY LICENSEE
If Licensee desires in the Licensed Territory (i) to sell its
Primary Services business for one or more markets and assign its rights under
this License Agreement with respect to such market(s), (ii) to pledge or assign
its rights under this License Agreement to a financial institution or other
party in connection with a financing transaction involving Licensee, or (iii)
enter into a transaction resulting in a Change of Control of Licensee, Licensee
shall notify Licensor in writing and Licensee shall be entitled to transfer,
assign, or pledge its rights under this License Agreement, or effect the Change
of Control, as the case may be, provided:
1. Licensee shall not be in default under this License
Agreement.
2. The transferee shall enter into a written assignment, in a
form satisfactory to Licensor, assuming and agreeing to comply with, at
Licensor's option, either this License
42
Agreement or Licensor's then current form or forms of license agreement relating
to the Marks, except that in the case of a pledge or collateral assignment to a
financial institution referred to in Section X.B.(ii), such pledge or collateral
assignment need only be made subject to all of the terms and conditions of this
License Agreement. In the case of a Change of Control, Licensee and the new
controlling entity shall enter into a written agreement, in a form satisfactory
to Licensor, agreeing that Licensee shall continue to be entitled to the rights
and subject to the obligations of a licensee hereunder.
3. Licensee shall remain liable for all of the obligations to
Licensor under this License Agreement prior to the effective date of transfer
and shall execute any and all instruments reasonably requested by Licensor to
evidence such liability. The transfer or Change of Control shall not affect any
of the terms or provisions of this License Agreement or the status of the
market(s) in the Licensed Territory pursuant hereto (including without
limitation, a market's default or probation status under this License
Agreement), all of which shall be or remain fully applicable to the transferee
or Licensee, as the case may be.
4. Where Licensee provides Primary Services in more than one
market and the transfer or Change of Control involves market(s) comprising less
than all of the markets in the Licensed Territory, the transferee or Licensee,
as the case may be, shall, at Licensor's option, enter into Licensor's then
current form of license agreement for the market(s) being transferred or to
which the Change of Control relates; in such event, this License Agreement shall
remain in full force and effect with respect to Licensee's remaining market(s),
if any, following the transfer or Change of Control.
5. The transferee or new controlling entity, or proposed
transferee or new controlling entity, as the case may be, shall provide Licensor
with such financial data, certificates of insurance, copies of Permits, and
other information as are required to be provided by Licensee hereunder in
connection with entering into this License Agreement, or otherwise, and such
materials and information shall be current and complete as of the effective date
of such transfer or Change of Control.
6. The transferee shall promptly pay Licensor any transfer
fees or charges then being charged generally by Licensor to transferees of
licenses to use the Marks. In the case of a Change of Control, Licensee shall
pay Licensor any similar fees then being charged generally by Licensor for such
Changes of Control with respect to licensees of the Marks.
Licensee shall be entitled to transfer, assign or pledge its rights
under this License Agreement, or enter into a transaction resulting in a Change
of Control of Licensee, with respect to a portion of a market in the Licensed
Territory, pursuant to the provisions of this Section X.B.
Licensee shall not be entitled to transfer, assign or pledge any of its
rights or obligations under this License Agreement, except by complying with the
provisions of this Section X.B.
43
relating thereto, nor shall Licensee permit a Change of Control to occur without
complying with the provisions of this Section X.B.
C. RIGHT TO ADD AFFILIATE AS PARTY
Subject to Section V.H., with the consent of Licensor,
Licensee shall be entitled to assign any or all of its rights under this License
Agreement to use the Marks in connection with the provision of Primary Services,
Core Products, Additional Services or Additional Products in the Licensed
Territory, or any part thereof, to an "Affiliate," which shall mean any business
entity Controlling, under the Control of, or under common Control with Licensee.
No assignment by Licensee of any rights pursuant to this Section X.C. shall
relieve Licensee of its obligations hereunder. In addition, Licensor's consent
to such assignment shall cease to be effective upon the occurrence of a Change
of Control with regard to Licensee or its assignee which results in Licensee or
its assignee no longer being Affiliates. Licensor shall be entitled, from time
to time and upon its reasonable request, to receive from Licensee and any
assignee thereof a certification that assignee continues to be entitled, under
this Section X.C. to utilize the Marks, together with the facts supporting such
entitlement. No assignee of Licensee shall be entitled to any vote pursuant to
Section IV.E. or to any notices from Licensor hereunder. No conduct on the part
of Licensor with regard to any assignee of Licensee shall be deemed to cause
such assignee to become a licensee hereunder or to have any ownership interest
in this License Agreement. Licensee shall give Licensor prior written notice of
any Change of Control, as defined below, of Licensee or any assignee of
Licensee.
D. CHANGE OF CONTROL
For the purposes of this License Agreement, a "Change of
Control" with regard to any entity shall mean the disposition or acquisition,
directly or indirectly, of Control with regard to such entity. "Control" or
"Controlling" with regard to an entity shall mean the record or beneficial
ownership, directly or indirectly, by any person or entity, or group of persons
or entities, of in excess of a majority of the equity securities of the entity
in question, or the power to designate a majority of the members of the Board of
Directors or other governing body thereof or to otherwise determine the
management and policies of the entity in question.
XI. DEFAULT AND TERMINATION
A. TERMINATION BY LICENSEE
Licensee shall have the right to terminate this License
Agreement without cause at any time upon at least one hundred eighty (180) days
advance written notice to Licensor. Licensee shall remain fully responsible for
any fees and other obligations accruing to Licensor during such notice period.
44
B. TERMINATION BY LICENSOR - WITHOUT NOTICE
Licensee shall be deemed to be in default under this License
Agreement, and all rights granted herein shall automatically terminate without
notice to Licensee, if Licensee becomes insolvent or makes a general assignment
for the benefit of creditors; or if a petition in bankruptcy is filed by
Licensee or against Licensee and not actively opposed by Licensee; or if
Licensee is adjudicated as bankrupt or insolvent; or if a xxxx in equity or
other proceeding for the appointment of a receiver of Licensee or other
custodian for Licensee's business or assets is filed and consented to by
Licensee; or if a receiver or other permanent or temporary custodian of
Licensee's assets or property, or any part thereof, is appointed by any court of
competent jurisdiction; or if proceedings for a composition with creditors under
any state or federal law should be instituted by Licensee or against Licensee
and not actively opposed by Licensee; or if a final judgment remains unsatisfied
or of record for thirty (30) days or longer (unless supersedeas bond is filed);
or if Licensee is dissolved except where the Licensee is a limited partnership
and, promptly following dissolution, such limited partnership is reconstituted
with the same general partners; or if a suit to foreclose any lien or mortgage
against real or personal property used in the operation of Licensee's Primary
Services business is instituted against Licensee and not dismissed within thirty
(30) days or, if actively being opposed by Licensee, within one hundred eighty
(180) days; or if execution is levied against Licensee's Primary Services
business, or any of the property related thereto; or if any material real or
personal property of Licensee used in its Primary Services business shall be
sold after levy thereupon by any sheriff, marshal, or constable; or if Licensee
at any time ceases to operate or otherwise abandons its Primary Services
business or otherwise forfeits the right to do or transact business in any
market(s) in the Licensed Territory; or if Licensee loses its FCC license or FCC
construction permit or any other material Permit for one or more market(s) in
the Licensed Territory or otherwise forfeits the right to do or transact
business in one or more market(s), in which event Licensee's rights under this
License Agreement with respect to such market(s) shall automatically terminate
and this License Agreement shall continue with respect to the remaining
market(s) in the Licensed Territory for which Licensee continues to hold all
necessary FCC license(s) and Permits.
C. TERMINATION BY LICENSOR - UPON NOTICE
Upon the occurrence of any of the following events, Licensee
shall be deemed to be in default and Licensor may, at its option, terminate this
License Agreement and all rights granted hereunder without affording Licensee
any opportunity to cure the default. Said termination shall be effective
immediately upon receipt of notice by Licensee (and Licensee shall remain fully
responsible for any fees and other obligations accruing to Licensor until such
termination becomes effective):
1. If Licensee has been advised of its probation status
pursuant to Section XI.E. and Licensee does not make a good faith effort to
formulate and implement a plan during the term of probation, or, at the end of
the term of probation, Licensee fails to meet the 85% overall minimum customer
satisfaction rating (or the higher percentage established by
45
Licensor under Section IV.A.) required in the Licensed Territory as a whole by
the Quality Standards for Primary Services and Core Products;
2. If with regard to the Licensed Territory or any market
constituting a part thereof, Licensee fails in any customer satisfaction survey
conducted pursuant to Section III.C. to attain an overall customer satisfaction
rating of more than 70%, regardless of the terms of any probation;
3. If any principal stockholder or officer of Licensee is
convicted of a felony, a fraud, or any other crime or offense that Licensor
believes is reasonably likely to have an adverse effect on the Marks, the
goodwill associated therewith, or Licensor's interest therein;
4. If a threat or danger to public health or safety results
from the operation of the Licensee's Primary Services business or any of its
businesses relating to the delivery of any Primary Services, Core Products,
Additional Products or Additional Services;
5. If Licensee purports to assign or transfer any rights or
obligations under this License Agreement to any third party (including without
limitation, any reseller) or to effect a Change of Control, contrary to the
terms of Sections VI.B.4 or X.B. of this License Agreement;
6. If, contrary to the terms of Section VII. hereof, Licensee
discloses or divulges Confidential Information provided to Licensee by Licensor;
7. If Licensee knowingly submits any false reports of
information to Licensor or any entity conducting a customer satisfaction survey
either during the application process or subsequent to the execution of this
License Agreement; or
8. If Licensee directly or indirectly contests in any court
or proceeding the validity or registration of, or Licensor's ownership of,
any of the Marks or other rights licensed hereunder.
D. TERMINATION BY LICENSOR - AFTER NOTICE AND OPPORTUNITY TO CURE
Except as provided in Sections XI.B. and XI.C. of this License
Agreement, Licensee shall have thirty (30) days after its receipt from Licensor
of a written notice of termination within which to remedy any default hereunder
(or, if the default cannot reasonably be cured within such thirty (30) days, to
initiate within that time substantial and continuing action to cure the
default), and to provide evidence thereof to Licensor. If 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 (and
Licensee shall remain fully responsible for any fees and other obligations
accruing to
46
Licensor until such termination occurs). Licensee shall be in default hereunder
for any failure to comply with any of the requirements imposed by this License
Agreement or to carry out the terms of this License Agreement in good faith.
Such defaults shall include, without limitation, the occurrence of any of the
following events:
1. If Licensee fails to offer the Primary Services and the
Core Products of nationwide call delivery and nationwide roaming, or any of
them, under the specified Marks on a continuous basis and in a manner reasonably
appropriate to promote and further the goodwill of the Marks, throughout the
Licensed Territory in accordance with this License Agreement;
2. If Licensee fails, refuses or neglects promptly to pay when
due any monies, fees or charges due to Licensor or the Fund, or under this
License Agreement, or fails, refuses or neglects promptly to submit information
as required under this License Agreement, or makes any false statements in
connection therewith;
3. If Licensee fails to comply, in any material respect, with
the Graphic Standards Manual or the Quality Standards;
4. If Licensee directly or indirectly misuses or makes any
unauthorized use of the Marks or otherwise materially impairs the goodwill
associated therewith or Licensor's rights therein;
5. If Licensee directly or indirectly engages in any business
or markets any service or product under a name or xxxx which, in Licensor's
opinion, is confusingly similar to, or may have a tendency to dilute, the Marks;
6. If Licensee shall breach or fail to timely perform any of
its covenants or obligations under this License Agreement including, without
limitation, the covenants of Licensee relating to the Consumer Service Number
program and the Other 800 Programs;
7. If Licensee fails, refuses or neglects promptly to pay when
due any fees or charges or otherwise timely perform its obligations to the Long
Distance Carrier with regard to the Consumer Service Number;
8. If Licensee, by act or omission, permits a continued
violation in connection with the operation of its business of any Permit, law,
ordinance, rule or regulation of a governmental agency, in the absence of a good
faith dispute over its application or legality and without promptly resorting to
an appropriate administrative or judicial forum for relief therefrom; or
9. If any dealer, agent, retailer or Affiliate of Licensee
misuses the Marks or otherwise fails to comply with this License Agreement, and
Licensee, upon request by Licensor, does not promptly (i) cause such dealer,
agent, retailer or Affiliate to cease the misuse
47
and to otherwise fully comply with this License Agreement, or (ii) terminate its
business relationship with such dealer, agent, retailer or Affiliate.
E. PROBATION
In the event that a customer satisfaction survey, conducted
pursuant to Section III.C., reveals an overall minimum customer satisfaction
rating less than required pursuant to Section IV.A.2., Licensor shall advise
Licensee of an imposition of probation status for a stated period of time,
typically one (1) year for Primary Services and Core Products. Promptly on
receipt of this written notice, Licensee agrees to formulate and implement a
written plan to improve the quality of Licensee's Primary Services and Core
Products, so that a subsequent customer satisfaction survey will indicate
compliance with the provisions of this License Agreement. Licensor shall be
entitled to review Licensee's plan upon reasonable request therefor. The
guidelines contained in the Guide to Quality Operations provided to Licensee by
Licensor and the Quality Standards set forth in Exhibit E are designed to assist
Licensee in improving its customer satisfaction rating. If Licensor determines,
in its sole discretion, that Licensee is not making a good faith effort to
formulate and implement such a plan, or after a reasonable probation period the
goals of the plan are not achieved, then Licensor may elect to extend the term
of the probation or terminate this License Agreement effective upon written
notice to Licensee pursuant to Section XI.C. Any extension of the Term of this
License Agreement by Licensor during any probationary period shall not waive
Licensor's rights under this Section XI.E. or under Section XI.C., and such
probationary period, and any agreements relating thereto, shall continue
unaffected.
F. PARTIAL TERMINATION
In addition to any other rights Licensor may have under
this License Agreement with respect to the termination of Licensee's right to
utilize the Marks in connection with Additional Services or Additional
Products, or to amend Exhibit D to delete Additional Services or Additional
Products therefrom, Licensor shall have the rights set forth in this Section
XI.F. From time to time, Licensor may conduct customer satisfaction surveys
specifically relating to Additional Products or Additional Services. In
addition, surveys conducted by Licensor with regard to the Primary Services
may be designed to determine customer satisfaction levels with regard to
Licensee's Additional Products or Additional Services. In the event that any
such customer satisfaction survey reveals an overall minimum customer
satisfaction rating of less than 85% (or such higher percentage as may be
established by Licensor under Section IV.A.), but more than 70%, with regard
to one or more markets constituting a part of the Licensed Territory,
Licensor shall be entitled to impose a probation status with regard to the
Additional Product or Additional Service and the market or markets in
question. Licensor shall advise Licensee of the period of time, typically one
(1) year, of such probation. Promptly upon receipt of this written notice,
Licensee agrees to formulate and implement a written plan to improve the
quality of Licensee's Additional Product or Additional Service in question in
the market or markets in question, so that a subsequent customer satisfaction
survey will indicate compliance with the provisions of this License
Agreement. Licensor shall be entitled to review Licensee's
48
plan upon reasonable request therefor. The Guide to Quality Operations
provided to Licensee by Licensor and the Quality Standards set forth in
Exhibit E hereto are designed to assist Licensee in improving its customer
satisfaction rating. Additional customer satisfaction surveys will be
commissioned in the market or markets in question from time to time
thereafter as Licensor deems appropriate, and Licensee agrees to pay the
reasonable direct costs of conducting such additional customer satisfaction
surveys. If Licensor determines, in its sole discretion, that Licensee is not
making a good faith effort to formulate and implement such a plan, or after a
reasonable probation period the goals of the plan are not achieved, then
Licensor may elect to extend the term of the probation or terminate
Licensee's right to utilize the Marks in connection with the Additional
Products or Additional Services in question in the market or markets in
question or in the Licensed Territory as a whole. In the event of such a
termination, Exhibit D hereto shall be amended appropriately. In addition, if
a customer satisfaction survey shall reveal an overall customer satisfaction
rating of 70% or less with regard to any Additional Product or Additional
Service in any market or markets in the Licensed Territory, Licensor, upon
thirty (30) days prior written notice to Licensee, shall be entitled to
terminate Licensee's right to utilize the Marks in connection with such
Additional Services or Additional Products, or any of them, in the market or
markets in question or in the Licensed Territory as a whole, and Exhibit D
hereto shall be amended to delete such Additional Products or Additional
Services therefrom. Any extension of the Term of this License Agreement by
Licensor during any such probationary period shall not waive Licensor's
rights under this Section XI.F., and such probationary period, and any
agreements relating thereto, shall continue unaffected.
G. FORCE MAJEURE
Neither Licensor nor Licensee shall be liable or deemed to be
in default for a delay in or failure of performance that results from any of the
following causes beyond the reasonable control of such party: strikes, work
stoppages, shortages of equipment, supplies or energy, war, insurrection, or
acts of God or the public enemy. Any delay resulting from any such cause shall
extend performance accordingly or excuse performance, in whole or in part, as
may be reasonable; provided however, that (i) said causes shall not excuse
payment of any amount due or owed at the time of such occurrence or payment of
Annual License Fees, Annual Advertising Fees, Consumer Service Number Fees or
other amounts due thereafter, (ii) the party asserting any such cause shall
promptly commence and diligently pursue action to remedy its inability or
failure to perform hereunder, and (iii) in no event shall said causes extend or
excuse performance for more than one hundred twenty (120) days from the time of
performance set forth in this License Agreement. The party asserting the
existence of a force majeure condition under this Section XI.G. shall promptly
notify the other party in writing of the occurrence and nature of any such cause
and shall thereafter regularly inform the other party in writing of the progress
of actions to remedy the inability or failure to perform hereunder.
49
XII. OBLIGATIONS UPON TERMINATION OR EXPIRATION
Upon termination or expiration of this License Agreement with respect
to one or more of the market(s) in the Licensed Territory (the "Terminated
Market(s)"), all rights granted hereunder to Licensee with respect to each
Terminated Market shall forthwith terminate, and:
A. DEIDENTIFICATION
1. Licensee shall immediately cease to hold itself out as a
present or former licensee of Licensor with respect to the Terminated Market(s).
2. Licensee shall immediately cease to participate in the
Consumer Service Number program, any Other 800 Programs or any similar national
call or customer routing program utilizing the Marks.
3. Licensee shall immediately and permanently cease to use, in
any manner whatsoever, in the Terminated Market(s) any of the Marks and
derivatives thereof, and all other marks and distinctive forms, slogans, signs,
icons, symbols, monograms and devices associated with the Marks. Without
limiting the foregoing, Licensee shall cease to use all signs, advertising
materials, World Wide Web sites, displays, stationery, forms, and any other
articles or clothing which display or incorporate any of the Marks or any
derivatives thereof.
4. Licensee shall take such action as may be necessary to
cancel in the Terminated Market(s) any trade name, fictitious name or equivalent
registration which contains any of the Marks or any other service xxxx or
trademark of Licensor, and Licensee shall furnish Licensor with proof of
compliance with this obligation within thirty (30) days after termination or
expiration of this License Agreement with respect to the Terminated Market(s).
5. Licensee agrees, in the event it continues to operate a
business in the Terminated Market(s), not to use any reproduction, counterfeit,
copy, or colorable imitation of the Marks or derivatives thereof, either in
connection with such other business or the promotion thereof, which is likely to
cause confusion, mistake, or deception, or which is likely to dilute Licensor's
rights in and to the Marks or derivatives thereof. Further, Licensee agrees not
to utilize any designation of origin or description or representation which
falsely suggests or represents an association or connection with Licensor or any
of the Marks or derivatives thereof in the Terminated Market(s).
6. Licensee shall immediately notify and cause its dealers,
agents, retailers and Affiliates that are using the Marks in the Terminated
Market(s) to immediately cease all use of the Marks and participation in the
Consumer Service Number program and any Other 800 Programs, and further cause
its dealers, agents, retailers and Affiliates to fully comply with all the
obligations applicable to Licensee under this Section XII. with respect to the
Terminated Market(s).
50
B. PAYMENT OF MONIES DUE
1. Licensee shall promptly pay all sums owing to Licensor, the
Cellular One Promotional Fund and any other advertising fund established
hereunder. If and when this License Agreement is terminated as a result of any
default of Licensee, such sums shall include all damages, costs and expenses,
including reasonable attorney's fees, incurred by Licensor as a result of the
default.
2. Licensee shall pay to Licensor all damages, costs and
expenses, including reasonable attorney's fees, incurred by Licensor subsequent
to the termination or expiration of this License Agreement in obtaining
injunctive or other relief for the enforcement of any provisions of this Section
XII.
C. RETURN OF CERTAIN CONFIDENTIAL DOCUMENTS
If this License Agreement has expired or been terminated with
respect to all of the market(s) in the Licensed Territory, then Licensor and
Licensee shall immediately deliver to the other party all documents which
contain Confidential Information of the other party as defined in Section VII.
hereof, including without limitation, the Guide to Quality Operations (including
the 800 Number Supplement) and the Graphic Standards Manual.
XIII. INDEPENDENT STATUS AND INDEMNIFICATION
A. It is understood and agreed by the parties hereto that this License
Agreement does not create a fiduciary relationship between them; that Licensee
shall remain an independent business: and that nothing in this License Agreement
is intended to constitute either party as an agent, legal representative
subsidiary, joint venturer, partner, employee or servant of the other for any
purpose whatsoever.
B. During the term of this License Agreement and any renewal hereof,
Licensee shall hold itself out to the public as an independent business using
the Marks pursuant to a license from Licensor. Licensee agrees to take such
action as may be necessary to so notify the public.
C. It is understood and agreed that nothing in this License
Agreement authorizes Licensee to make any contract, agreement, warranty or
representation on Licensor's behalf, or to incur any debt or other obligation
in Licensor's name. Licensor shall in no event assume liability for, or be
deemed liable hereunder as a result of, any such action; nor shall Licensor
be liable by reason of any act or omission of Licensee, its dealers, agents,
retailers or Affiliates in the conduct of their businesses or for any claim
or judgment arising therefrom against Licensee or Licensor. Licensee shall
indemnify and hold Licensor, Licensor's employees, the Partnership Partners
and their affiliates, and their respective officers, directors, employees and
stockholders, harmless from and against any and all claims arising directly
or indirectly from, as a result of, or in connection with, the operation of
the businesses of Licensee, its dealers,
51
agents, retailers and Affiliates, as well as the costs, including attorney's
fees, of defending against them.
D. It is understood and agreed that Licensor does not establish or
certify manufacturing, technical or performance standards for
telecommunications equipment or customer premises equipment and Licensee will
not represent otherwise to third parties.
XIV. APPROVAL AND WAIVERS
A. Whenever this License Agreement requires the prior approval or
consent of Licensor, Licensee shall make a timely written request to Licensor
therefor, and such approval or consent shall be obtained in writing. Licensor
will process all such requests for approvals and consents in a reasonable and
timely manner.
B. Licensor makes no warranties or guarantees upon which Licensee may
rely, and assumes no liability or obligation to Licensee, by providing any
waiver, approval, consent or suggestion to Licensee in connection with this
License Agreement, or by reason of any neglect, delay or denial of any request
therefor.
C. No failure of Licensor or Licensee to exercise any power reserved to
it in this License Agreement, or to insist upon compliance by the other party
with any obligation or condition in this Agreement, and no custom or practice of
the parties at variance with the terms hereof, shall constitute a waiver of
either party's rights to demand exact compliance with any of the terms of this
License Agreement. Waiver by Licensor or Licensee of any particular default on
the part of the other party shall not affect or impair the non-defaulting
party's right with respect to any subsequent default of the same or of a
different nature; nor shall any delay, forbearance or omission by Licensor or
Licensee to exercise any power or right arising out of any breach or default by
the other party of any of the terms, provisions or covenants of this License
Agreement affect or impair such party's rights, nor shall such constitute a
waiver by Licensor or Licensee, as the case may be, of any rights hereunder or
rights to declare any subsequent breach or default.
D. Subsequent acceptance by Licensor of any payments due to it shall
not be deemed to be a waiver by Licensor of any preceding breach by Licensee of
any terms, covenants or conditions of this License Agreement.
XV. NOTICES
Any and all notices required or permitted under this License Agreement
shall be in writing and shall be personally delivered, delivered by reputable
overnight courier, proof of delivery requested, or by certified mail, postage
prepaid and return receipt requested, to the
52
respective parties at the following addresses unless and until a different
address has been designated by written notice to the other party:
Notices to Licensor: CELLULAR ONE GROUP
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: President
Copy (which shall not
constitute notice) to: Xxxxx & Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Cellular One Group
Notices to Licensee: At the address shown on the signature page
hereof.
Any notice by overnight courier or certified mail shall be deemed to
have been given at the date and time such notice is accepted by the overnight
courier or deposited with the U.S. Postal Service, respectively. No failure to
address any notice hereunder to a particular individual shall render such notice
invalid.
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
hereunder, no amendment, change or variance from this License Agreement shall be
binding on either party unless mutually agreed to by the parties and executed by
their authorized officers or agents in writing.
XVI. SEVERABILITY AND CONSTRUCTION
A. Except as expressly provided to the contrary herein, each portion,
section, part, term and/or provision of this License Agreement shall be
considered severable; and if, for any reason, a portion, section, part, term
and/or provision herein is determined to be invalid and contrary to, or in
conflict with, any existing or future law or regulation by a court or agency
having valid jurisdiction, such shall not impair the operation of, or have any
other effect upon,
53
such other portions, sections, parts, terms and/or provisions of this License
Agreement as may remain otherwise intelligible; and the latter shall continue to
be given full force and effect and bind the parties hereof; and said invalid
portions, sections, parts, terms and/or provisions shall be deemed not to be a
part of this License Agreement.
B. Nothing in this License Agreement is intended, nor shall be deemed,
to confer any rights or remedies upon any person or legal entity other than
Licensor or Licensee, and their respective successors and assigns as permitted
by this License Agreement.
C. In the event a court in a final decision rules that any provision of
this License Agreement or portion thereof is unenforceable, Licensee agrees to
be bound by the maximum duty ruled enforceable by the court.
D. All captions in this License Agreement are intended solely for the
convenience of the parties, and none shall be deemed to affect the meaning or
construction of any provision hereof.
E. All references herein to the masculine, neuter or singular shall be
construed to include the masculine, feminine, neuter or plural, where
applicable.
F. This License Agreement may be executed in several counterparts, and
each copy so executed shall be deemed an original.
XVIII. APPLICABLE LAW
A. THIS LICENSE AGREEMENT TAKES EFFECT UPON ITS ACCEPTANCE AND
EXECUTION BY LICENSOR IN THE STATE OF TEXAS AND SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED UNDER, THE LAWS THEREOF, WHICH LAWS SHALL PREVAIL IN
THE EVENT OF ANY CONFLICT OF LAW; PROVIDED, HOWEVER, THAT IF ANY OF THE
PROVISIONS OF THIS LICENSE AGREEMENT WOULD NOT BE ENFORCEABLE UNDER THE LAWS OF
THE STATE OF TEXAS, THEN SUCH PROVISIONS SHALL BE GOVERNED BY, AND INTERPRETED
AND CONSTRUED UNDER, THE LAWS OF THE STATE IN WHICH THE LICENSED TERRITORY IS
LOCATED (IF THE LICENSED TERRITORY CONTAINS PORTIONS OF MORE THAN XXX XXXXX XX
XXX XXXXXXXX XX XXXXXXXX, THEN THE APPLICABLE LAW SHALL BE THAT OF THE STATE IN
WHICH THE LARGEST PORTION OF THE LICENSED TERRITORY IS LOCATED).
B. No right or remedy conferred upon or reserved to Licensor or
Licensee by this License Agreement is intended to be, nor shall be deemed,
exclusive of any other right or remedy herein or by law or equity provided or
permitted, but each shall be cumulative of every other right or remedy.
54
C. Nothing herein contained shall bar Licensor's right to apply for
injunctive relief against threatened conduct that will cause it loss or damages,
under applicable equity rules, including the applicable rules for obtaining
restraining orders and preliminary injunctions.
XIX. ACKNOWLEDGMENTS
A. Licensee acknowledges that it is currently engaged in the
telecommunications business and that such business involves substantial
investment and risks and that its success is largely dependent upon the ability
of Licensee's management and technical personnel. Licensor expressly disclaims
the making of, and Licensee acknowledges that it has not received, any warranty
or guarantee, express or implied, as to the potential volume, profits, or
success resulting from the utilization of the Marks by Licensee in its
telecommunications business.
B. Licensee acknowledges that it received a copy of the complete
Cellular One License Agreement and the Exhibits thereto at least five (5)
business days prior to the date on which this License Agreement is signed by
Licensee. Licensee further acknowledges that it received the disclosure document
required by the Trade Regulation Rule of the Federal Trade Commission entitled
"Disclosure Requirements and Prohibitions Concerning Franchising and Business
Opportunity Ventures" at least ten (10) business days prior to the date on which
this License Agreement is signed by Licensee.
C. Licensee acknowledges that it has read and understood this License
Agreement and the attachments hereto, and that Licensor has accorded Licensee
ample time and opportunity to consult with advisors of Licensee's own choosing
about the potential benefits and risks of entering into this License Agreement
on the effective date set forth below.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
55
WITNESS WHEREOF, the parties hereto have duly executed this License Agreement
to be effective on the date shown below.
CELLULAR ONE GROUP
By: /s/ Xxxxxxx X. Xxxxx
----------------
Title: President
Effective Date: 12/01/96
--------
Primary Contact in Ordinary Course of Business:
Xxxxxxx X. Xxxxx, President
Cellular One Group
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, XX 000000
972/387-5225
972/000-0000 (Fax)
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
56
LICENSEE: Erie Cellular Tel. Co.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------
Title: Vice-President
--------------
Date of Signature: 1/6/97
-------
PRIMARY CONTACT IN ORDINARY COURSE OF BUSINESS:
Xxxxxxx Xxxxxxxx VP & Chief Operation Officer
SYGNET Communications, Inc.
0000-X Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Phone: 330/000-0000 Fax: 330/000-0000
ADDRESS FOR NOTICE AND VOTING PURPOSES:
Xxxxxxx Xxxxxxxx VP & Chief Operation Officer
SYGNET Communications, Inc.
0000-X Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Phone: 330/000-0000 Fax: 330/000-0000
CONTACT FOR BILLING PURPOSES:
Xxxx Xxxxxxxx Controller
SYGNET Communications
0000-X Xxxxxxx Xx.
Xxxxxxxx, Xxxx 00000
Phone: 330/000-0000 Fax: 330/000-0000
57
EXHIBIT A
CELLULAR ONE LICENSE AGREEMENT
The Marks currently designated by Licensor for use hereunder are as
follows:
Registration or
Marks Application Number
----- ------------------
CELLULAR ONE (service xxxx) 1,839,076
1-800-CELL ONE(1) 75/105,170
CELLULAR ONE NETWORK(2) 74/495,960
LONG DISTANCE BY CELLULAR ONE(2) 75/017,997
PCS BY CELLULAR ONE(2) 75/010,430
PAGING BY CELLULAR ONE(2) 75/010,429
TELCOM BY CELLULAR ONE(2) 75/010,427
DISPATCH BY CELLULAR ONE(2) 75/010,428
DATA BY CELLULAR ONE(2) 75/079,447
VIDEO BY CELLULAR ONE(2) 75/079,445
INTERNET BY CELLULAR ONE(2) 75/088,362
LOCAL CALLING BY CELLULAR ONE(2) -
CELLULAR ONE (trademark)(2) 1,947,105
(1) Licensor may delete this Xxxx and/or Licensee's rights with respect to
this Xxxx xxx terminate under certain circumstances, as further
described in Section IV.J. of this License Agreement.
(2) Licensor may delete or modify any of these Marks or vary the Additional
Services or Additional Products in connection with which these Marks
may be used by Licensee, in accordance with the provisions of this
License Agreement or in furtherance of Licensor's rights hereunder.
OPTIONAL MARKS*
---------------
CLEAR ACROSS AMERICA 1,907,932
--------------------
* Licensee may utilize the optional Marks in accordance with the terms
and provisions of this License Agreement and the Graphic Standards
Manual, but Licensor shall have the right in its sole discretion to
terminate Licensee's use of any of the optional Marks upon thirty (30)
dads written notice to Licensee.
EXHIBIT B
CELLULAR ONE LICENSE AGREEMENT
LICENSED TERRITORY
OTHER
FCC MARKET
MARKET NAME MSA/RSA MARKET NO. DESCRIPTION
----------- ------- ---------- -----------
Erie, PA MSA 130A1
Total Population: 281760
EXHIBIT C
CELLULAR ONE LICENSE AGREEMENT
PRIMARY SERVICES
ASSOCIATED
XXXX (IF ANY) PRIMARY SERVICES DESCRIPTION
------------- ---------------- -----------
Cellular One Cellular Telephone Services "A" Side Cellular Telephone Services
EXHIBIT D
Cellular One License Agreement
ADDITIONAL SERVICES
CORE PRODUCT XXXX PRODUCT OR SERVICE DESCRIPTION
------------ ---- ------------------ -----------
X Cellular One Nationwide Call The ability of customers to be reached on
Delivery their wireless phone anywhere in the
United States and its territories (including
Alaska, Hawaii, Puerto Rico and U.S.
Virgin Islands) by having the caller dial
their wireless phone number.
X Cellular One Nationwide The ability of customers to make calls in
Roaming other than "home markets" anywhere in the
United States and its territories
(including Alaska, Hawaii, Puerto Rico
and U.S. Virgin Islands) by dialing the
appropriate phone number.
Cellular One Nationwide Cellular NCCDN shall be a backbone network
Network Call Delivery Network which consists of hardware/software,
("NCCDN") transmission links and routing switches or
permitting protocols, and possessing the physical and
participating cellular intangible properties and functionality
customers to necessary to permit Licensee to offer
automatically Cellular Telephone Services customers the
receive calls dialed (i) service codes, (ii) dialing patterns, (iii)
to such customer's feature codes, and (iv) recorded messages
home cellular (the foregoing clauses (i) through (iv)
telephone number being hereafter collectively referred to as
when roaming. "Dialing Standards") described in the
Guide to Quality Operations, within
the United States and its territories (including
Alaska, Hawaii, Puerto Rico and U.S.
Virgin Islands).
Exhibit D - Page 1
Cellular One Primary Services The Cellular One Xxxx xxx be used for
provided in one or more Additional Services if they
combination with are provided in conjunction with the
one or more of the Primary Services; otherwise, the other
Additional Services Marks in this Exhibit are to be used for
the specified Additional Services in
accordance with Licensor's graphic
standards. If the Primary Services are
provided in conjunction with one or more
Additional Services under the Cellular One
Xxxx, Licensee must, in accordance with
Licensor's graphic standards (i) use the
Marks in this Exhibit for the Additional
Services in question or (ii) use Licensor's
designated form of the descriptive term for
the Primary Services and Additional
Services in question (e.g., Cellular, Long
Distance, PCS, Paging, Telcom, Dispatch,
Data, Video, Internet or Local Calling)
rather than the full Marks shown in this
Exhibit (e.g., Long Distance by Cellular One,
Paging by Cellular One, etc.).
Exhibit D - Page 2
Long Distance by Long Distance Service An intra-LATA or inter-LATA toll
Cellular One telecommunications service that is
primarily viewed as part of a public
switched telephone network providing
users in fixed (such as residences and
businesses) or mobile locations with two-
way voice, data, text, and image
communications. Minimum requirements
for Long Distance Service include:
- provisioning of
telecommunications service
- offering two-way voice,
data and text
communications
- being used as part of a
public switched telephone
network
- providing intra-LATA,
inter-LATA and
international service
- providing users with the
ability to terminate calls
nationally and
internationally
- allowing customers utilizing
any or all of the full
spectrum of
telecommunications services
such as Cellular, PCS,
Paging, Dispatch, Alternate
Wireless Services and
Telcom, to subscribe to this
service.
Exhibit D - Page 3
PCS by Cellular Personal communication A wireless telecommunications service that
One services is interconnected to a public switched
telephone network providing users with at
least intra-LATA and inter-LATA two-way
voice and data communications. Service
is provided through a mobile phone (car,
transportable, or portable) or through
wireless modems incorporated into devices
such as lap top computers and electronic
notebooks. Minimum requirements of PCS are:
- provisioning of wireless
telecommunications service
- offering two-way voice and
data communications
- interconnecting to a public
telephone network
- providing intra-LATA and
inter-LATA service
- supplying service through:
- mobile phones that
are mobile (car),
transportable or
portable, or
- wireless modems
incorporated into
devices such as lap
top computers and
electronic
notebooks.
Exhibit D - Page 4
Paging by Cellular Paging A wireless telecommunications messaging
One service providing users with at least one-way
voice and/or data communications such as
voice or data messaging or data transfer to
a pager or a device such as a lap top
computer, or mobile phone with a built in
pager. Minimum requirements of Paging are:
- provisioning of a wireless
telecommunications service
- offering at least one way
voice and/or data communications
- providing service through analog or
digital technology for paging
devices that either are stand-alone
or part of a device such as a lap
top computer or a mobile phone.
Telcom by A combination of Telecommunications products and
Cellular One telecommunications services that are part of or
products or services, interconnected primarily to a public
including products switched telephone network
such as handsets, providing users in fixed locations
modems and PBX- such as a residence and businesses
like devices and with local, intra-LATA and inter-
services such as LATA two-way voice, data, text,
Cellular Telephone and image communications.
Services, Alternate Minimum requirements for Telcom include:
Wireless Services,
private network - providing service to users in fixed
services, or local locations such as residences and
calling (exchange) businesses
services
- offering two-way voice, data and
text communications
- interconnecting to a public
switched telephone network
- providing local, intra-LATA or
inter-LATA service.
Exhibit D - Page 5
Dispatch by Dispatch Services A wireless telecommunications
Cellular One messaging service providing users
with "push to talk" two-way voice
dispatch and data broadcast that is
generally used in the public safety,
construction, and transportation industries,
and that can be interconnected to a public
telephone network. Minimum requirements for
Dispatch include:
- provisioning of wireless
analog telecommunications
service
- offering two-way voice and
data communications
- providing "push to talk"
technology for
organizations and multiple
vehicles or locations
- interconnecting with a
public telephone network.
Data by Cellular Data Transmission Transmission of information in a
One numerical form that is in either a
digital or analog format which can be
transmitted via local, intra-LATA and
inter-LATA facilities through a wireless
telecommunications network that is
interconnected to a public switched
telephone network and subsequently
processed.
Video by Cellular Video Delivery Services Providing full motion images and
One conversational audio transmission which
can be sent or received in synchronization
via wired and wireless facilities.
Internet by Internet Services A wired or wireless
Cellular One telecommunications access to a
database of articles, information
and entertainment through the
Internet/World Wide Web.
Exhibit D - Page 6
Local Calling by Local Calling (exchange) An intra-LATA telecommunications
Cellular One Services service that is primarily viewed as part of
a public switched telephone network
providing users in fixed (such as residences
and businesses) locations with two-way
voice, data, text, and image communications.
Minimum requirements for local calling
services include:
- provisioning of telecommunications
service
- offering two-way voice,
data and text communications
- being used as part of a
public switched telephone
network
- providing intra-LATA
service
- providing users with the
ability to terminate calls
nationally and internationally
- allowing customers utilizing
any or all of the full
spectrum of telecommunications
services, such as Cellular,
PCS, Paging Dispatch,
Alternate Wireless Services
and Telcom, to subscribe to
this service.
ADDITIONAL PRODUCTS
CORE PRODUCT XXXX PRODUCT OR SERVICE DESCRIPTION
------------ ---- ------------------ -----------
Cellular One Wireless Communications Cellular telephones, handsets,
Equipment transceivers, pagers (remote data
receptors), personal digital
assistants (wireless data devices
which can receive and send data
messages), modems and facsimile
machines, and parts and accessories
therefor.
Exhibit D - Page 7
EXHIBIT E
Cellular One License Agreement
Quality Standards
QUALITY STANDARDS MEASUREMENT
----------------- -----------
- Overall Minimum - 85% of surveyed respondents answered Licensor's
Customer Satisfaction commissioned satisfaction survey as "very satisfied" or
Rating "somewhat satisfied" with their Cellular One service overall
- Reliability of placing and - Majority of surveyed respondents answered Licensor's
completing a call commissioned satisfaction survey "As Expected" or "Better
than Expected" for the reliability of placing and receiving a call
in home calling area ("Home Market")
- Voice quality - Majority of surveyed respondents answered Licensor's
commissioned satisfaction survey "As Expected" or "Better than
Expected" for the quality of voice or sound during Cellular One
calls in Home Market
- System Busy Signals - Majority of surveyed respondents answered Licensor's
commissioned satisfaction survey "As Expected" or "Better than
Expected" for the ability to place or receive calls without a
system busy signal in Home Market
- Dropped Calls - Majority of surveyed respondents answered Licensor's
commissioned satisfaction survey "As Expected" or "Better than
Expected" for the ability to continue phone calls without being
dropped because of weak signal
- Quickness of answering - Majority of surveyed respondents answered Licensor's
customer call commissioned satisfaction survey "As Expected" or "Better than
Expected" for the quickness of answering the phone
- Ability to adequately - Majority of surveyed respondents answered Licensor's
answer customer's reason commissioned satisfaction survey "As Expected" or "Better than
for calling Expected" for ability to adequately answer reason for calling
- Accuracy of Xxxx - Majority of surveyed respondents answered Licensor's
commissioned satisfaction survey "As Expected" or "Better than
Expected" for the accuracy of the xxxx
- Clarity or - Majority of surveyed respondents answered Licensor's
Understandability of Xxxx commissioned satisfaction survey "As Expected" or "Better than
Expected" for the clarity or understandability of the xxxx
- Data Quality - Accurately transmit or receive data at a rate of at least 9,600 bps
Exhibit E - Page 1
- Seamless Network - Customers must be able to travel with their
wireless phones outside their Home Market and
make and receive calls without interruption when
they travel beyond their Home Market
- Automatic Roaming - Customers must have the ability to make calls in markets outside
of their Home Market in the same manner as is done in their
Home Market, without any special dialing sequences or
instructions
- 24 Hour Customer Service - Customer service must be able to be accessed inside or outside
of their Home Market 24 hours a day, 7 days a week
- *611 Dialing From a - Customers with problems must he able to access customer
Wireless Phone service from their wireless phone within and outside their Home
Market by dialing *611
- 1-800-CELL ONE - A 24 hour service which can be accessed by prospects and
customers for assistance with telecommunications products and
services by any type of telephone technology from local and
remote sites.
Exhibit E - Page 2
EXHIBIT G
Cellular One License Agreement
Special Reseller Provisions
[To be agreed to between Licensor and Licensee when applicable]
