The following document is a form of the Cellular One License Agreements
dated February 25, 1997 which have been entered into with ▇▇▇▇▇▇ Cellular of
Kansas/Missouri,Inc., ▇▇▇▇▇▇ Cellular of ▇▇▇▇, Inc. and ▇▇▇▇▇▇ Cellular of
▇▇▇▇▇▇▇▇, Inc., respectively. There are seven of these agreements currently
in place covering the service areas reflected in each of the Exhibits B,
which are each filed herewith. With the exception of the Exhibits B, all of
the agreements are identical.
CELLULAR ONE LICENSE AGREEMENT
between
Cellular One Group
and
▇▇▇▇▇▇ Cellular of Kansas/Missouri, Inc.
CELLULAR ONE LICENSE AGREEMENT
SECTION TITLE PAGE NO.
------- ----- -------
▇. ▇▇▇▇▇, LIMITATIONS AND ACKNOWLEDGMENTS.........................
II. TERM AND RENEWAL ..............................................
III. RIGHTS AND DUTIES OF LICENSOR..................................
IV. DUTIES OF LICENSEE.............................................
V. FEES AND REPORTING.............................................
VI. MARKS..........................................................
VII. CONFIDENTIAL INFORMATION.......................................
VIII. ADVERTISING....................................................
IX. INSURANCE......................................................
X. TRANSFER OF INTEREST ..........................................
XI. DEFAULT AND TERMINATION .......................................
XII. OBLIGATIONS UPON TERMINATION OR EXPIRATION ....................
XIII. INDEPENDENT STATUS AND INDEMNIFICATION ........................
XIV. APPROVAL AND WAIVERS ..........................................
XV. NOTICES .......................................................
XVI. ENTIRE AGREEMENT...............................................
XVII. SEVERABILITY AND CONSTRUCTION .................................
XVIII. APPLICABLE LAW ................................................
XIX. ACKNOWLEDGMENTS ...............................................
CELLULAR ONE LICENSE AGREEMENT
THIS AGREEMENT is entered by and between Cellular One Group, a
Delaware general partnership ("Licensor") and [▇▇▇▇▇▇ Cellular of ▇▇▇▇ Inc.],
[▇▇▇▇▇▇ Cellular of ▇▇▇▇▇▇▇▇, Inc.], [▇▇▇▇▇▇ Cellular of Kansas/Missouri,
Inc.], a corporation/partnership organized under the laws of Oklahoma
("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 ▇▇▇▇ "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- ▇▇▇▇ 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 Section 22.99) ("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 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
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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 "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 ▇▇▇▇. 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.
-3-
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,
-4-
this 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 ▇▇▇▇" shall mean the service ▇▇▇▇ denoted as such on
Exhibit A hereto.
"800 NUMBER SUPPLEMENT" shall have the meaning set forth in
Section IV.J. 1.tb) 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.
-5-
"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.
"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 ▇▇▇▇" shall mean the trademark or service ▇▇▇▇ "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.
-6-
"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.
"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.
-7-
"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.
"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.
-8-
"RSA" shall mean the cellular Rural Service Areas as referred to in
47 C.F.R. Section 22.909.
"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.
"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:
▇. ▇▇▇▇▇, LIMITATIONS AND ACKNOWLEDGMENTS
▇. ▇▇▇▇▇
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
terrns 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
-9-
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 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
-10-
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:
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1. Licensee gives Licensor written notice of its election to
renew not less than six (6) months nor more than twelve (12) months before
the end of the expiring Term;
2. Licensee 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 -TM-I.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.;
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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.
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:
▇. ▇▇▇▇▇ 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, ▇▇▇▇ specimens, samples of advertisements and clip art
indicating color,
-13-
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 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
-14-
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 ▇▇▇▇ 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 ▇▇▇▇ 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
-15-
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 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
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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.
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.
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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 date 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.
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
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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.
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3. Based upon the review contemplated by Section m.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 respect 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, 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 m.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
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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 m.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 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
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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.I.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,
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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 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:
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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
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
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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 income and
franchise tax returns with respect to Licensee's operations. In the event
that any of
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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
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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 m.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 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
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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 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
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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 ▇▇▇▇ 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
▇▇▇▇ 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;
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(iv) Licensee's stationery, business cards, notices and
other mailouts, and, to the extent practicable, any press or other
media coverage afforded Licensee; and
(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 ▇▇▇▇ (or any ▇▇▇▇
substituted therefor by Licensor) as the principal service ▇▇▇▇ 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
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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.
I. USE OF THE CELLULAR ONE TRADEMARK
In order to protect and enhance the Cellular One ▇▇▇▇ and the
goodwill pertaining thereto, Licensee shall, consistent with Exhibit D, use
the Cellular One ▇▇▇▇ 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
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One ▇▇▇▇ 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 ▇▇▇▇ 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 (▇-▇▇▇ ▇▇▇-▇▇▇▇). 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
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).
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(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
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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
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
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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.
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
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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 ▇▇▇▇ 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 ▇▇▇▇ 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 ▇▇▇▇, 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, ▇▇▇▇
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
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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 Licensee in the Consumer Service Number, any telephone number,
▇▇▇▇ 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
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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 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, 1991, 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
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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 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
-39-
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:
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(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;
(b) "CPI-l" 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, Inc., or any successor or equivalent index generally utilized by
the industry to estimate future costs associated with promotional activities.
-41-
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 l, 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
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.
-42-
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.
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
-43-
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
-44-
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 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
-45-
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.
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
▇▇▇▇ or design any ▇▇▇▇ 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
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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 ▇▇▇▇ or design with reasonable notice to
Licensee.
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.
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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 ▇▇▇▇(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).
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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 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.
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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 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
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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:
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
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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.
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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 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
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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 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
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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 ▇▇▇▇▇▇ ▇. 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;
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
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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:
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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 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 terrns 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
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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. 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
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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.
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
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Licensee is adjudicated as bankrupt or insolvent; or if a ▇▇▇▇ 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
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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
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
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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 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
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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 ▇▇▇▇ 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 and to otherwise
fully comply with this License Agreement, or (ii) terminate its business
relationship with such dealer, agent, retailer or Affiliate.
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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
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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 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 Tenn of this License
Agreement by Licensor during any such probationary period
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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.
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).
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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
▇▇▇▇ 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).
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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 p _ t to a license from Licensor. Licensee agrees to take such
action as may be necessary to so notify the public.
-68-
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, 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
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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 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
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Copy (which shall not
constitute notice) to: ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Cellular One Group
Notices to Licensee: At the address shown on the signature
page hereof.
-70-
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.
XVII. SEVERABILITY AND CONSTRUCTION
A. Except as expressly provided to the contrary herein, each portion,
section, part, term and/or provision of this License Agreement shall be
considered severable; and if, for any reason, a portion, section, part, term
and/or provision herein is determined to be invalid and contrary to, or in
conflict with, any existing or future law or regulation by a court or agency
having valid jurisdiction, such shall not impair the operation of, or have
any other effect upon, such other portions, sections, parts, terms and/or
provisions of this License Agreement as may remain otherwise intelligible;
and the latter shall continue to be given full force and effect and bind the
parties hereof; and said invalid portions, sections, parts, 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.
-71-
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 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, THEN THE APPLICABLE LAW SHALL BE
THAT OF THE STATE IN WHICH THE LARGEST PORTION OF THE LICENSED TERRITORY IS
LOCATED).
B. No right or remedy conferred upon or reserved to Licensor or
Licensee by this License Agreement is intended to be, nor shall be deemed,
exclusive of any other right or remedy herein or by law or equity provided or
permitted, but each shall be cumulative of every other right or remedy.
C. Nothing herein contained shall bar Licensor's right to apply for
injunctive relief against threatened conduct that will cause it loss or
damages, under applicable equity rules, including the applicable rules for
obtaining restraining orders and preliminary injunctions.
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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 benefit and risks of entering into this License
Agreement on the effective date set forth below.
WITNESS WHEREOF, the parties hereto have duly executed this License
Agreement to be effective on the date shown below.
CELLULAR ONE GROUP
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: President
Effective Date: 2/25/97
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Primary Contact in Ordinary Course of
Business
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Cellular One Group
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
972/387-5225
972/▇▇▇-▇▇▇▇ (Fax)
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LICENSEE: ▇▇▇▇▇▇ Cellular of ▇▇▇▇, Inc.
By: G. ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Title: President
Date of Signature: 1/13/97
PRIMARY CONTACT IN ORDINARY COURT OF
BUSINESS:
▇▇▇▇▇ ▇. ▇▇▇▇ Director of Revenue
Assurance
▇▇▇▇▇▇ Cellular of Enid, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: 405/▇▇▇-▇▇▇▇ Fax: 405/▇▇▇-▇▇▇▇
ADDRESS FOR NOTICE AND VOTING PURPOSES:
▇▇▇▇▇ ▇. ▇▇▇▇ Director of Revenue
Assurance
▇▇▇▇▇▇ Cellular, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: 405/▇▇▇-▇▇▇▇ Fax: 405/▇▇▇-▇▇▇▇
CONTACT FOR BILLING PURPOSES:
G. ▇▇▇▇▇▇ ▇▇▇▇▇, President
▇▇▇▇▇▇ Cellular, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: 405/▇▇▇-▇▇▇▇ Fax: 405/▇▇▇-▇▇▇▇
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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 ▇▇▇▇) 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 ▇▇▇▇ and/or Licensee's rights with respect to
this ▇▇▇▇ ▇▇▇ 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
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------------------
* 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) days written
notice to Licensee.
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EXHIBIT B
CELLULAR ONE LICENSE AGREEMENT
LICENSED TERRITORY
Other
Market
Market Name MSA/RSA Market No. Description
------------ ------- ---------- -----------
Enid OK RSA 302A1
Total Population: 57017
EXHIBIT B
CELLULAR ONE LICENSE AGREEMENT
LICENSED TERRITORY
Other
Market
Market Name MSA/RSA Market No. Description
------------ ------- ---------- -----------
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
Total Population: 48793
EXHIBIT B
CELLULAR ONE LICENSE AGREEMENT
LICENSED TERRITORY
Other
Market
Market Name MSA/RSA Market No. Description
------------ ------- ---------- -----------
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
Total Population: 117381
EXHIBIT B
CELLULAR ONE LICENSE AGREEMENT
LICENSED TERRITORY
Other
Market
Market Name MSA/RSA Market No. Description
------------ ------- ---------- -----------
Missouri 01 RSA 505A1
Total Population: 42617
EXHIBIT B
CELLULAR ONE LICENSE AGREEMENT
LICENSED TERRITORY
Other
Market
Market Name MSA/RSA Market No. Description
------------ ------- ---------- -----------
Missouri 02 RSA 505A1
Total Population: 34132
EXHIBIT B
CELLULAR ONE LICENSE AGREEMENT
LICENSED TERRITORY
Other
Market
Market Name MSA/RSA Market No. Description
------------ ------- ---------- -----------
Missouri ▇▇-▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Total Population: 69073
EXHIBIT B
CELLULAR ONE LICENSE AGREEMENT
LICENSED TERRITORY
Other
Market
Market Name MSA/RSA Market No. Description
------------ ------- ---------- -----------
Missouri 05 RSA 508A1
Total Population: 68322