Network Performance Specifications. (a) From and after the date hereof until the [*****] of the Effective Date (the “Committed Performance Date”), NewCo shall, and shall cause its Controlled Affiliates to, use commercially reasonable efforts to meet the network performance parameters set forth in Section 2(a) of Schedule 9.4.2(a). NewCo and the SIG Parties shall, no later than the Committed Performance Date, mutually develop and agree upon (i) the minimum network performance parameters of the NewCo Network to support the Wireless Broadband Service (the “Network Performance Specifications”) that will be in effect from and after the Committed Performance Date and (ii) the appropriate remedies available to the SIG Parties for the failure of NewCo and its Controlled Affiliates to achieve the Network Performance Specifications from and after the Committed Performance Date (subject, in each case, to updates or modifications thereof in accordance with this Section 9.4.2(a)); provided that it is understood that the Network Performance Specifications in effect from and after the Committed Performance Date shall, at a minimum, meet the specifications set forth in Section 2(b) on Schedule 9.4.2(a); provided, further, that to the extent that NewCo or any of its Controlled Affiliates enters into any agreement or understanding with any other Person (including any Founding Partner or any of its Controlled Affiliates) that grants such Person network performance parameters of the NewCo Network for supporting Wireless Broadband Services and/or remedies associated with the failure to meet any such network performance parameters that are more favorable (as to such Person) than the Network Performance Specifications or the remedies referred to in the foregoing clause (ii) then in effect, as applicable, then NewCo shall promptly (and in any event within 60 days) notify each SIG Party thereof in writing and each SIG Party shall have the right (which right must be exercised within 90 days of receipt of such notice from NewCo) to substitute such more favorable network performance parameters and/or remedies, as the case may be, for the Network Performance Specifications or such remedies then in effect, as applicable. From and after the Committed Performance Date, NewCo and its Controlled Affiliates shall operate the NewCo Network in compliance the Network Performance Specifications then in effect, and the failure to meet such specifications shall result in the application of the remedies described in clauses (ii) above then in effect. On a monthly basis, NewCo will provide a standard report or set of standard reports describing the performance of the NewCo Network against the Network Performance Specifications then in effect. Without limiting the foregoing, from and after the determination of the initial Network Performance Specifications to be effective on the Committed Performance Date, NewCo shall, in cooperation with the SIG Parties, ensure that the Network Performance Specifications evolve properly over time to support enhanced services over the NewCo Network and to keep pace with technological developments, new competitive product offerings and emerging industry standards. (b) Notwithstanding any other provision of this Section 9.4.2, this Section 9.4.2 and any remedies for failing to achieve the Network Performance Specifications will not apply to, or in the event of:(1) circumstances caused by acts or omissions outside of NewCo’s control including acts and omissions by third parties, a SIG Party or any of their respective agents, representatives, designees or vendors; (2) Force Majeure Events; (3) a SIG Party or a SIG Party’s failure to materially comply with its obligations as defined in the Agreement; (4) scheduled standard maintenance windows; or (5) failure or problems caused by any components outside the NewCo Network or outside of NewCo’s or any of its Controlled Affiliate’s reasonable control.
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Network Performance Specifications. (a) From and after the date hereof until the [*****] of the Effective Date (the “Committed Performance Date”), NewCo Clearwire shall, and shall cause its Controlled Affiliates to, use commercially reasonable efforts to meet the network performance parameters set forth in Section 2(a) of Schedule 9.4.2(a). NewCo Clearwire and the SIG Parties shall, no later than the Committed Performance Date, mutually develop and agree upon (i) the minimum network performance parameters of the NewCo Clearwire Network to support the Wireless Broadband Service (the “Network Performance Specifications”) that will be in effect from and after the Committed Performance Date and (ii) the appropriate remedies available to the SIG Parties for the failure of NewCo Clearwire and its Controlled Affiliates to achieve the Network Performance Specifications from and after the Committed Performance Date (subject, in each case, to updates or modifications thereof in accordance with this Section 9.4.2(a)); provided that it is understood that the Network Performance Specifications in effect from and after the Committed Performance Date shall, at a minimum, meet the specifications set forth in Section 2(b) on Schedule 9.4.2(a); provided, further, that to the extent that NewCo Clearwire or any of its Controlled Affiliates enters into any agreement or understanding with any other Person (including any Founding Partner or any of its Controlled Affiliates) that grants such Person network performance parameters of the NewCo Clearwire Network for supporting Wireless Broadband Services and/or remedies associated with the failure to meet any such network performance parameters that are more favorable (as to such Person) than the Network Performance Specifications or the remedies referred to in the foregoing clause (ii) then in effect, as applicable, then NewCo Clearwire shall promptly (and in any event within 60 days) notify each SIG Party thereof in writing and each SIG Party shall have the right (which right must be exercised within 90 days of receipt of such notice from NewCoClearwire) to substitute such more favorable network performance parameters and/or remedies, as the case may be, for the Network Performance Specifications or such remedies then in effect, as applicable. From and after the Committed Performance Date, NewCo Clearwire and its Controlled Affiliates shall operate the NewCo Clearwire Network in compliance the Network Performance Specifications then in effect, and the failure to meet such specifications shall result in the application of the remedies described in clauses (ii) above then in effect. On a monthly basis, NewCo Clearwire will provide a standard report or set of standard reports describing the performance of the NewCo Clearwire Network against the Network Performance Specifications then in effect. Without limiting the foregoing, from and after the determination of the initial Network Performance Specifications to be effective on the Committed Performance Date, NewCo Clearwire shall, in cooperation with the SIG Parties, ensure that the Network Performance Specifications evolve properly over time to support enhanced services over the NewCo Clearwire Network and to keep pace with technological developments, new competitive product offerings and emerging industry standards.
(b) Notwithstanding any other provision of this Section 9.4.2, this Section 9.4.2 and any remedies for failing to achieve the Network Performance Specifications will not apply to, or in the event of:(1) circumstances caused by acts or omissions outside of NewCoClearwire’s control including acts and omissions by third parties, a SIG Party or any of their respective agents, representatives, designees or vendors; (2) Force Majeure Events; (3) a SIG Party or a SIG Party’s failure to materially comply with its obligations as defined in the Agreement; (4) scheduled standard maintenance windows; or (5) failure or problems caused by any components outside the NewCo Clearwire Network or outside of NewCoClearwire’s or any of its Controlled Affiliate’s reasonable control.
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